In January, this year the Health and Safety Executive (HSE) consulted on changes to the Gas Safety (Installation and Use) Regulations 1998 (GSIUR). No date has been confirmed by the HSE but we understand that the changes may come into force in April next year.
Regulation 36 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.
The proposed amendments to the current position are:
- To introduce flexibility in the timing of landlords’ annual gas safety checks; and
- To clarify that only gas defects should be recorded.
The first amendment 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 of the existing 12-month certificate. The reason for this proposed change is that in order to comply with their duties landlords usually begin the process of gaining access at approximately 10.5 months. However, 75% of those landlords gain access promptly on request and this means that there is a shortening of the safety check cycle year-on-year.
The example given in the consultation paper states that in a 9 year period a landlord finds himself obtaining 10 gas safety certificates because the cycle is shortened year on year. With this amendment, it will be possible for there to be an occasional gap of up to 14 months between the gas safety checks. Again, using the example given in the consultation paper this is how it should work:
– The expiry date of a current check record is 1 December 2016
– The following year the landlord has the check completed at the earliest date – 1 October 2017 (10 months have elapsed).
– The next year the landlord has the safety check completed on the latest possible date, 1 December 2018. Thus a 14-month gap arises between the 2017 check and that carried out in 2018.
The HSE has carried out an analysis of the information they hold and concluded that the 14-month gap does not pose a safety risk. In fact, they state that this MOT-style system of gas safety checks will save landlords an estimated £22 million per year.
In addition to the financial savings the amendment will also give landlords some flexibility in having the gas safety checks carried out. This flexibility will no doubt be useful for those who are having difficulty gaining access. However, it will be the landlord’s responsibility to maintain an audit trail/documentation of the checks and where they fail the HSE will conclude that the expiry date of the current safety check will be taken as 12 months from the date of the last safety check. Where there are a number of documents missing the HSE will no doubt deal with that matter on a case by case basis.
Something to note is that where a gas safety check is carried out less than 10 months since the previous check the clock will be reset. The landlord will not be able to benefit from this new amendment rather the new expiry date will now be 12 months from the date of this latest check. It is also important to note that if the property is tenanted it is an offence to have no current gas safety check. So, when calculating latest dates for the check landlords must ensure that there is no period of time for which they do not have a gas safety in place.
The second amendment is a minor change to the regulation which requires only gas safety defects to be recorded on a gas safety record.
It appears that this amendment is designed to help tackle the problem of access to properties. The HSE requires landlords to take all reasonable steps to comply with their gas safety duties and whilst extra time may help with that it will not help where tenants refuse access in all circumstances. Where access is a problem expert advice should be sought at the earliest opportunity.