The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 ("the Regulations") have already been effective for new private tenancies entered into from 1 July 2020. From 1 April 2021, the Regulations will extend to all applicable existing tenancies, irrespective of their commencement date.
Who must comply?
The Regulations apply to residential tenancies that grant the right to occupy either all or part of a premises as their only or main residence and which provide for the payment of rent. This includes assured shorthold tenancies and licences to occupy (including houses in multiple occupation), subject to exceptions.
As the title of the Regulations suggest, the application is to the private rented sector only and therefore does not apply to social housing landlords.
Further exemptions include where the tenant shares the accommodation with the landlord or a member of the landlord's family, long leases, tenancies granted for 7 years or more, student halls of residence, hostels, refuges, care homes, hospitals and hospices.
The Regulations apply to properties in England only.
What do the Regulations require?
The Regulations require inspection and testing of electrical equipment every 5 years by a qualified person. Testing will include the 'fixed' electrical parts of the property, such as the wiring, plug sockets, light fittings and fuse box. This extends to permanently connected equipment such as showers and extractors, but does not cover electrical appliances, such as cookers, fridges and televisions.
The inspection and testing must be carried out before the commencement of any new tenancy granted after 1 July 2020 and, for tenancies existing before July 2020, must be carried out before 1 April 2021 when the regulations are extended to all applicable tenancies. It is therefore imperative that private landlords act now to ensure they can comply with the Regulations before the end of March if they have not already done so.
A written report must be produced and provided to existing tenants within 28 days of the inspection, new tenants before they occupy the property, prospective tenants within 28 days of a request, the local housing authority within 7 days of a request, and to the person carrying out the next safety report.
Where the report demands further investigate or remedial work, the landlord must ensure the required work is completed within 28 days or within the timeframe set out in the report if this is shorter. Written confirmation of the completion of works must be provided to the tenant and to the local authority within 28 days of completing the work. However, if the report only recommends improvements, this is considered best practice but it is not a requirement to meet the recommendations.
Who is a "qualified person" for the purpose of the Regulations?
A qualified person is defined as a person competent to undertake the inspection and testing required and any further investigative or remedial works in accordance with electrical safety standards.
The electrical safety industry has established a competent person scheme. Membership of the scheme is not compulsory but does provide certainty the individual is qualified to undertake the inspection. If an individual is not a member of the competent person scheme, the landlord should ask the inspector to sign a checklist certifying their competence, including their experience, insurance held, and that they have up to date qualification in electrical installations.
What are the consequences for non-compliance?
The local authority will be responsible for enforcement. If the local authority has reasonable grounds to believe a landlord is in breach of the Regulations, they will serve a remedial notice on the landlord. If the landlord does not comply with the notice, with the tenant's consent, the local authority can step in to arrange completion of the required works and recover the cost from the landlord.
Local authorities may also impose a financial penalty of up to £30,000 on landlords who are in breach of their duties. The local authority must serve a 'notice of intent' to impose a financial penalty on the landlord. The landlord has a right to make written representations against the notice within 28 days before the penalty can be confirmed. The landlord has a further right of appeal within 28 days of service of the final notice confirming the fine. This further appeal should be made to the First-tier Tribunal.
The landlord can also appeal to the First-Tier Tribunal against the decision of the local authority to take remedial action and, following any remedial action, against a demand for recovery of costs made by the local authority.
What if the tenant refuses access?
Government guidance provides that a landlord is not in breach of their duty to comply with the Regulations if the landlord can show they have taken all reasonable steps to comply. Therefore if the tenant is refusing to allow access for a COVID-related reason or any other reason, the landlord is unlikely to be penalised for non-compliance if reasonable steps have been taken.
Reasonable steps include keeping copies of all communications landlords have had with their tenants and with electricians about arranging the work and any replies, and providing any other evidence that demonstrates the electrics are in a good condition, including servicing records and previous safety reports. Taking court proceedings against the tenant is not viewed to be necessary in demonstrating reasonable steps have been taken.
Attributed to Ryan Powers, Paralegal.