The Coronavirus Act 2020 was given Royal Assent overnight on 25 March 2020 and contains provisions to protect business tenants from forfeiture.
If you are a landlord, you may be wondering what your obligations are in relation to gas safety checks during the Covid-19 outbreak. This article seeks to answer some of the questions that you might have as well as provide you with practical advice.
Your Statutory Obligation
As a starting point, landlords are still expected to comply with their obligations under the Gas Safety (Installation and Use) Regulations 1998, including completing annual gas safety inspections. These regulations have not been relaxed despite the current coronavirus pandemic and the obvious obstacles this creates for arranging and undertaking gas safety inspections.
For example, tenants and/or members of their household may have to self-isolate for 7 to 14 days if they are suffering from symptoms of coronavirus or have been exposed to a known case. They may also fall into one of the Government’s listed ‘vulnerable’ or ‘at high risk’ categories of persons and therefore be shielding for 12 weeks as a precaution. Gas engineers may also be unavailable for the same reasons.
If you anticipate difficulties in undertaking the annual gas safety inspection due to the Covid-19 outbreak and Government restrictions in place, you should note that you are able to carry out the inspections 2 months before the deadline. Landlords can carry out inspections at any point in the 10-12 months from the previous check. Despite this, the new certificate will still be issued as if it the inspection was carried out on the deadline from the previous check.
In the current circumstances, we would advise arranging gas safety inspections or other safety works to be carried out as soon as possible, so that these do not become overdue should you be prevented from doing so closer to the deadline (due to self-isolation or gas engineer unavailability).
Landlords are also expected to ensure that they act in accordance with Government guidance regarding public health. This includes considering the health and wellbeing of tenants and contractors alike. Your statutory obligation therefore needs balancing against the health and safety of the tenant and your operatives.
Of course, landlords should continue to act reasonably when attempting to gain access to their properties. Guidance requires landlords to take a pragmatic and common sense approach, including looking at each case on a case by case basis. If tenants are preventing access to the property, you should ask them why. Are they self-isolating? Are they shielding? If so, find out why and when their period of self-isolation and/or shielding will end. Maybe an appointment can be arranged for after this? Try to discuss as well as resolve any concerns that your tenant and/or members of their household may have. As you can appreciate, this is a very distressing time for everyone, so whatever you can do to help alleviate tenants’ concerns is likely to be well received and may result in access being voluntarily provided.
You could remind the tenant that a gas safety check appointment can still take place in accordance with Government guidance regarding public health. Suggesting that contractors will wear protective clothing during visits and that tenants can isolate in a separate room to where the gas safety check takes place in order to observe social distancing may ease a tenant’s concerns. Give assurances where you can. On the other hand, tenants should also be reminded that the gas safety check is very important as a faulty gas appliance can be just as deadly as Covid-19!
Evidence of Compliance
The statutory obligation requires landlords to ensure that they have taken reasonable steps to comply with the law. Failing to do so means that you are technically in breach and subject to liability. It is therefore crucial to keep good records of any communication with the tenant (warning/appointment letters, emails, attempted calls) and details of the engineer’s attempts to enter the property. You should also record any decision to delay an appointment for access due to shielding or self-isolation and communicate this to the tenant. Tenants’ whose gas safety appointments have to be postponed should be made aware of who to call in the event that they have any concerns in the meantime, for example, if they can smell gas or suspect a leak.
These records will help evidence that you have taken reasonable steps to comply with your statutory obligation and protect you on the question of liability later, should this arise. This having been said, it is difficult to see landlords being criticised for not carrying out inspections due to the specific restrictions in place i.e. self-isolation, shielding or operatives otherwise being unable to complete inspections following social distancing rules.
For example scenarios on what might be reasonable in the current circumstances see here.
Gas Safety Access Injunctions
If you are unable to gain reasonable access to a property to complete an annual gas safety inspection and have concerns, there is still the option of applying to the County Court for an access injunction. Any application to the Court by a landlord for access to complete a gas safety inspection should be dealt with in the normal way and injunctions are on the court’s priority list of matters to be dealt with. The Court will give guidance on how each application will be dealt with on a case by case basis. This is likely to be by way of a remote telephone or video hearing.
Where a tenant is shielding because they are part of a high risk group, we are seeing Courts and Judges being reluctant to grant access by way of an injunction during the tenant’s 12 week period of shielding. As mentioned, in such circumstances, you may therefore wish to consider arranging an appointment for after the tenant’s period of shielding. The same applies to cases of self-isolation. You are unlikely to be granted access to a property where a tenant or a member of their household is self-isolating during their 7 to 14 day period of self-isolation. You may therefore want to consider arranging an appointment for after self-isolation rather than prematurely applying for an injunction for access.
Injunction applications continue to be useful where a tenant fails to engage and/or a gas safety check is overdue, particularly if you have concerns that a property is a health and safety hazard. It is important to note that landlords do not have a contractual or statutory right to access their tenant’s gas meter and turn off their gas simply because the tenant has failed/refused to provide access for the annual gas safety inspection.
Each individual case will need to be looked at and dealt with on a case by case basis so please do not hesitate to contact us for further legal advice on individual matters.
Correct at time of Publication (23 April 2020)