20 March, 2020
Please note: This article was written prior to the Prime Minister's announcement of further civilian restrictions on the evening of 23.03.2020 and so does not take account of the effects of that announcement. Further updates will follow as soon as possible.
The issue of Annual Gas Safety Checks can be a headache for landlords at the best of times. Problematic tenants either refusing entry, or being absent from their property altogether, can often make this simplest of tasks an almighty ordeal. But the arrival of a second invisible killer has left many social landlords with an additional question:
The problem at hand is obvious - whilst landlords have grown accustomed to hearing a wide range of excuses for denying them entry to a property, it is not often the case that these excuses are backed-up and legitimised by official Government-issued guidance. As things stand, official UK Government advice on Covid-19 recommends self-isolation for 7 days for anyone displaying symptoms, and 14 days for those who live with them. Those over 70 or with underlying health conditions may find themselves isolated for three months. Physical contact with the outside world, is advised to be kept to an absolute minimum.
It is clear, then, that even the most reasonable and level-headed tenant may display misgivings about allowing a gas safety technician into their house. This is exacerbated by the reality that such technicians have the potential to spread the disease from one property to many others.
For any landlord concerned that they may find themselves in breach of their duty to maintain the safety of gas installations and appliances, advice is on hand from both the Health and Safety Executive and from Forbes Solicitors to help make sense of the issues over the upcoming weeks and months.
The HSE have reminded landlords that, whilst gas safety checks must be an annual occurrence, the flexibility is there to allow these checks to be done "any time from 10 to 12 calendar months after the previous check". The recommendation being offered by the HSE is to book as many appointments as possible at the 10-month stage, thus allowing two months in which to proactively address any issues arising from tenants who are self-isolating.
It is nevertheless very possible that a tenant will refuse entry even after the government-recommended isolation period is up for that individual. In such cases, the HSE's advice is to ensure that, as a landlord, you demonstrate in a clear and transparent way that all reasonable steps were taken to fulfil your safety obligations.
In practical terms, this will mean keeping records of all correspondence and communications with both the tenants and the engineers involved, saving any appointment times and clearly identifying any reasons provided for those appointments not going ahead. We consider that this will include noting any special vulnerabilities of each tenant or household members - for example old age, ill-health or pregnancy. By keeping such a record and diligently persisting in your attempts to fulfil your obligations in a safe and responsible manner, a landlord can do their best to avoid liability even when they cannot access a property to perform the required safety checks.
In a round-about way, the essential legal position with regards to gas safety checks is unchanged in the wake of Covid-19. Fundamentally, it must be emphasized that the duty to conduct checks is still very much present, and there is no indication that that is going to change any time soon.
This must be balanced against a risk landscape which is changing on a daily basis. On average, 30 people die each year in the UK from carbon monoxide poisoning although numbers have generally declined in recent years. In comparison, it will not be long before Covid-19 will have surpassed the total of all such British deaths during the last 10 years combined, but in the space of just 2 months.
When it has come to tenants denying entry, a landlord's liability has always begun with a look at Regulation 39 of the Gas Safety (Installation and Use) Regulations 1998; the 'All Reasonable Steps' defence.
A landlord will avoid criminal liability for failure to perform their gas safety obligations provided that they can show they took "all reasonable steps to prevent that contravention".
The actions that will be considered 'reasonable' have always been and remain largely subjective, despite certain industry-wide accepted norms. The Courts will never judge a landlord's actions against a definitive list of all steps which must be taken, because the situation is going to be entirely dependent on the facts of each case.
To give Corona-specific examples, firstly it is arguable that a Court could draw a distinction between a landlord who does not attend on a tenant because that tenant is socially distancing themselves as a general precaution, and another landlord who is unable to gain access to a property occupied by a tenant who finds themselves displaying symptoms or is in a 'high risk' category.
Equally, should you find your usual gas contractor to be unable or unwilling to conduct gas safety checks due to their own Coronavirus concerns, a Court will no doubt look more favorably on a landlord who can prove they made approaches to multiple alternative companies before concluding that they cannot fulfil their obligations.
In any case where it is unlawful for a gas engineer to carry out their usual duties because of a government-imposed curfew, that would be an obvious basis for the landlord to make out a defence during the period in question.
Alongside this, both landlords and their contractors owe duties under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999 to carry out suitable risk assessments to manage the risk of infection, both to the individual engineers and to the residents of the properties. Landlords and contractors will need to consider whether additional personal protective equipment is needed (such as face masks, goggles and/or latex gloves) and the usual risk assessments around home visits will need to take account of the pandemic - which may need frequent updating depending on the numbers of people affected by the virus.
We are living in unprecedented times and it is to be expected that there will be varying degrees of latitude extended by different judges to social landlords who try to "do the right thing". Even so, the importance of continuing to comply with your legal duties under the Gas Safety Regulations should not be underestimated. In the event of any doubt, advice should be sought on a case by case basis.
Forbes Solicitors regularly advises on all matters relating to gas servicing and cyclical maintenance. Should you wish to discuss any issues with us, please contact either Lachlan McLean, Sam Gorrell or Ciaran Rafferty for more information.