As the first implementation date of the electrical safety standard regulations arrives, landlords in the private rented sector will need to ensure they are aware of their obligations and should actively take steps to ensure compliance in respect of all new tenancies from 1 July 2020.
The Electrical Safety Standards in the Private Rented Sector (England) Regulations (“the Regulations”) made on 18 March 2020 aim to ensure electrical safety standards in the private rented sector in England and come into force in two phases:
- For specified tenancies entered into after 1 June 2020, the Regulations have effect from 1 July 2020; and
- For existing specified tenancies, the Regulations will apply from 1 April 2021.
Specified tenancies include most residential tenancies in the private rented sector, with a few notable exceptions such as shared accommodation with the landlord (i.e. lodgers), long leases, student accommodation, hostels and care homes.
What duties do landlords have under the Regulations?
1. Ensure the electrical safety standards are met during the tenancy
The designated electrical safety standards are those set out in the 18th edition of Wiring Regulations (published as BS 7671:2018) which came into force on 1 January 2019. As Laura Sheftel reported here when the draft Regulations were first published, existing electrical installations installed before 1 January 2019 are unlikely to comply with the 18th edition.
2. Ensure electrical installations are tested either before the tenancy commences or by 1 April 2021 (in relation to existing tenancies)
As with gas safety obligations, landlords must now ensure all new tenants are provided with a copy of the electrical installation test before moving into the property. A copy of the latest report should also be provided to a prospective tenant within 28 days of written request. However, this requirement is not currently linked to the valid service of a Section 21 Notice as is the case with certain gas safety obligations (see our insight: Better late than never? for more on gas safety certificates).
3. Ensure all electrical installations in the property are inspected and tested at least every 5 years by a qualified person
A qualified person is defined in the Regulations as someone who is competent person. The Government has published A Guide for Landlords: Electrical Safety Standards in the Private Rented Sector which includes further guidance from the electrical safety industry about choosing a qualified competent inspector and tester.
4. Ensure an Electrical Safety Condition Report (EICR) is produced following the inspection and provided within the designated timeframes.
The EICR must set out the details of the test and specify when the next test must take place. It must be provided to:
(a) Existing tenants within 28 days of the inspection and test;
(b) Local Authorities within 7 days of the written request for the same; and
(c) To the competent person carrying out the next test and inspection before they do so.
5. Carry out investigative or remedial work (where required) within 28 days of the date of the inspection or sooner if required by the EICR.
Where investigative or remedial work is required, the landlord must also obtain written confirmation from a qualified person that the works have been carried out and that the electrical safety standards are now met.
The landlord must ensure a copy of this written confirmation and the original EICR setting out the required remedial work, is provided to the existing tenant and the local authority within 28 days of completion of the works.
What are the penalties for non-compliance?
Local Authorities are under a duty to enforce compliance with the Regulations and may:
- Demand a copy of the EICR, which the landlord must provide within 7 days.
- Serve a remedial notice where there are reasonable grounds to believe a landlord is in breach of its duties under the Regulations.
- Arrange for remedial works to be carried out and recover the reasonable costs of doing so where the landlord fails to do so and the tenant consents.
- Impose a financial penalty or penalties if there is a continuing failure to comply, for breach of the obligations up to a maximum of £30,000.
The Regulations enable a landlord to challenge a remedial notice for example by making written representations within 21 days of service of the notice. If the local authority opts for carrying out the remedial work themselves, a landlord may appeal the local authority decision and/or the costs recovery to the First-Tier Tribunal (Property Chamber).
Does failure to comply with the Regulations prevent service of a Section 21 Notice?
No – the Regulations do not currently penalise landlords for non-compliance by preventing service of a valid Section 21 Notice.
What about the impact of COVID-19?
The initial government guidance suggested that landlords should make every effort to abide by electrical safety requirements but recognised the difficulty of doing so given the restrictions in place and recommended that a landlord keep records to show they have taken reasonable steps to comply.
On 1 June 2020, the government updated its guidance and confirmed:
- Landlords should make every effort to comply with the new electrical safety regulations providing it is possible to do so in line with government guidance on working in people’s homes.
- Where a household is self-isolating, inspections should not be carried out until the period of isolation has ended, unless required to remedy a direct risk to the household safety. A direct risk is defined as a risk that affects the ability of a tenant to live safely and maintain mental and physical health in the property.
- Where an individual in the household is shielding, a balancing exercise must be carried out, assessing the age, history and type of system or appliance against the practical considerations of the property. The guidance queries for example whether the shielded person can reside in separate room for the duration of visit. This will heavily depend on the layout of the property and extent of electrical installations at the property – it may not be as feasible for a shielded person to isolate during an electrical safety testing for example as it is for gas safety testing.
In light of the potential practical difficulties raised by COVID restrictions, the guidance recommends a pragmatic and common sense approach to enforcement.
The guidance suggests that a landlord may prove they have taken reasonable steps to comply by:
- Keeping copies of communications with tenant(s) and electrician to arrange the electrical safety testing together with copies of any responses received; and
- Providing other evidence to show the installation or appliance is in good condition.
What practical steps can landlords take to ensure compliance with the Regulations?
Landlords should continue to take steps to ensure compliance in readiness for 1 July 2020 and should consider the following in order to minimise the risk of non-compliance:
- Maintain accurate records – all attempts to communicate with tenant(s) and arrange any the electrical safety testing should be well-documented.
- Assess the nature of electrical installations at the property and review whether any incidental evidence may be produced to show the installation is in good condition.
- Ensure where electrical safety testing is carried out, copies of the EICR are retained appropriately to ensure they can be made available to the next tenant or prospective tenant.
- Consider the terms included in any ASTs used to ensure the drafting includes a tenant obligation to notify the landlord on receipt of a statutory notice. This could be crucial where for example a landlord receives a written request at the property from the local authority for the EICR – a landlord will have just 7 days to comply.