New legislation on gas safety is expected to come into force on 6 April 2018. Our previous post on these changes can be read here. A Health and Safety Executive approved code of practice and guidance on the legislation can also be read here.
Regulation 36 [ http://www.legislation.gov.uk/uksi/1998/2451/regulation/36/made ] of the GSIUR sets out a landlord’s gas safety duties. In carrying out such duties the landlord must ensure:
- That any gas fittings are maintained in a safe condition;
- That each appliance and flue is checked for safety within 12 months of being installed and every 12 months thereafter;
- That a gas check is carried out by a person approved by the HSE and that a record of each check is kept and retained for a period of 2 years from the date of that check.
Landlords who fail to comply with their statutory duties can be prosecuted and fined or imprisoned. Furthermore, following the Deregulation Act 2015 no Section 21 can be validly served by a landlord if they have failed to comply with these duties, thus making it difficult to gain possession.
MOT style checks
Section 36A will allow landlords’ gas safety checks to be carried out in a window of between 10 and 12 months after the previous check but treated as if it was carried out on the last day (referred to as the ‘deadline date’ in the regulations) of the existing 12-month certificate. This new MOT style check will allow landlords to carry out the checks up to a maximum 2 months before the deadline date but keep the same annual check date. Essentially landlords who get their checks done early (up to the maximum 2 months) will no longer be penalised for being organised and the perverse incentive to leave it all to the last minute has been removed.
Resetting the Clock
The HSE guidance document states that where a check is carried out less than 10 months following the previous check this will have the effect of ‘resetting the clock’ meaning that the deadline will now be 12 months from the date of this new check. It is therefore essential for checks to be carefully timed.
Pursuant to the amended regulation 36 (3) where an individual appliance is replaced the check may be carried out up to 2 months after the deadline date (that is the 12 month expiry date of the last gas safe check) however it can only be delayed:
- once for each appliance or flu; and
- only in order to align the dates of the gas safe checks for the property.
This is a one-off flexibility permitted to realign the dates of safety checks on existing appliances and a new appliance within 12 months of their installation in the property.
A landlord must retain at the very minimum the previous 2 gas safety check records. The legal duty remains with the landlord to be able to demonstrate that the checks have been made within the required timescales, this is despite the gas engineers duty to date the certificate.
The Secretary of state will carry out a review of these new provisions on or before 1 April 2023. The review will set out the objectives of the new provisions and assess to what extent these objectives have been achieved.
These new provisions do not affect a landlord’s legal obligation to obtain annual gas safe certificates. However, they do offer some flexibility when carrying out the checks in order to assist with access problems and landlords with large portfolios.