Shocking lack

And I apologise for the pun in the title, which is in dubious taste.

Normally on NL, we restrict putting our view on matters to a few comments or the odd, albeit caustic, remark. But the events and legal requirements that are set out in this story from the RLA newsletter are such that we even had a bit of a discussion about whether and how Nearly Legal could mount a campaign.

In short, atrocious wiring in a private let resulted in the death of a tenant while running a bath. She was found dead by her five year old daughter. Wiring in the property, done 28 years ago, had subsequently ‘been checked by the landlord’s husband’, who was not a qualified electrician. There had been no professional check on the electrics since 1981.

Now, while there is a clear duty under S.11 Landlord & Tenant Act 1985 to keep the electrics in repair, and dodgy electrics would be a Category 1 hazard under the HHSRS, Housing Act 2004, what there isn’t is any requirement that would be comparable to the requirement for an annual gas safety certificate by a Gas Safe registered engineer.

In reality, there is no requirement for regular, professional inspections of electrical installations in rented residential properties, although there is no end of statute to say that the electrics must not be in disrepair or be dangerous. This only has practical effect once the electrics are dangerous.

Given that the single most life threatenng installations in rented property in general would have to be gas and electric, the absence of a requirement for regular checks along the lines of the gas check is frankly a serious omission from the statutory requirements.

We collectively came to the conclusion that we are not sure how NL would run or front a campaign in any event. And if we were to do so, there might also be other candidates – like educating police about the criminal offence of unlawful eviction (see the comments on this post).

But this is a matter that would be simple to resolve in legislation and one about which any landlords’ protests over the imposition of an additional burden can be safely discounted – whether public, RSL or private landlord. It is something that they should be doing anyway.

In the absence of repair works, a disrepair claim for water penetration is one thing, death by electrocution something else entirely. Anyone from DCLG. or indeed the TSA. reading? A quick, simple and life saving option presents itself…

Landlords – read this and follow it.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Disrepair, Housing law - All, Regulation and planning and tagged , , .

17 Comments

  1. The lack of any duty to inspect – even if less frequently than annually – has always seemed anomalous, but even more so in recent years when there seems to be a regulation about everything.

    As for a campaign, NL et al, I’m sure you’ve got enough on your plate already. Surely there’s only so many things a blogging legal aid lawyer can fit into a day. Perhaps Shelter should take it up.

  2. Although I understand the sentiments behind the idea of such a campaign, I find it unrealistic to believe that a landlord who leaves the electrics unchecked for 26 years (the death was in Cornwall in April 2008) is likely to comply with regulations requiring regular checks.

    The simple fact is that however many responsible landlords there are, and I have no doubt that many will have followed the link above, there are many others who see residential property simply as a cash cow. Unless firstly a tenant dies and secondly they are unlucky enough to be prosecuted then they can make more money by ignoring the law.

    A report in the Belfast Telegraph
    http://tinyurl.com/kkt64m
    quotes the victim’s mother as saying:
    “We thought there could be a police prosecution, but were told there is no law to prosecute under.”

    As for the gas regulations, less than two weeks ago I tried reporting a landlord to the HSE over a refusal to carry out gas safety checks. They were not interested. The county court will (maybe this year, maybe next year) order the landlord to carry out a check in the flat I am directly concerned with but the landlord’s other properties will go unchecked.

    • Fair comment Brass. In over six years working as a paralegal, the only time I’ve known the HSE to do anything about an allegation that a landlord has failed to comply with the gas safety regulations – other than issue notices- is when there was already widespread adverse publicity about the landlord in question, and they risked having egg on their faces if they didn’t follow through and anyone came to harm.

      The HSE worker I spoke to at the time said they simply don’t have the resources to ordinarily take enforcement action against residential landlords. They prioritise enforcement action against commercial outfits – e.g. workplace risks – since this forms the bulk of their work, and is seen as presenting higher risks. If tenants knew how little enforcement was actually done by the HSE on residential gas safety they’d be shocked.

      There’s a strong argument for gas safety enforcement to be given to local authorities, who after all have an established function in registering and inspecting properties, and would perhaps be more accountable.

    • Another idea (which could run in parallel) is to apply some private sanctions to the landlord. For example preventing service of s.21 notices (as with tenant deposits and HMO’s) or making rent unpayable during the period (which would surely make some landlords pay a bit more attention).

    • Mark – The HSE might claim that they prioritise enforcement action but i think the sad reality is that many HSE staff see their job as writing reports and wringing their hands after deaths and serious injuries rather than trying to prevent them. The landlord I tried to report is a local authority so I do not see much point in trying to get them to police themselves.

      Francis – The private sanction route would seem the best way forward. No CP12, no rent sounds sensible to me. Need an exception for tenants who have persistently refused access.

  3. Thats actually quite scary. Surely a landlord who is renting to 3rd parties should be subjected to the same safety reqirements as a public building which the public or a designated group have access to? Perhaps a safety cert every two years would solve this for landlords and give electricians something to do.

  4. Pingback: The Property Law Blog

  5. I suspect that most landlords will be as shocked and horrified as we are about this – but those landlords are not the problem.

    As it is unlikely that more funding will be provided to local authorities or the HSE to enforce this sort of thing in the near future, as Mr Brown has mortgaged the country to pay the banks, probably the most effective way forward, as Francis suggests, would be to make it a requirement for landlords to do specific test or inspection work, and provide for tenants to be allowed to withhold rent until proof is provided that the test has been done. That coupled with a s21 penalty should hopefully be effective.

    There is always the problem of course of what do you do if the tenant won’t let you in to do the test …

  6. I have been leading on a very high profile to give protection to tenants to allow them to report help and safety issues without the risk of losing their home through retaliatory eviction,. Despite this, I am still frustrated to see we are still no further on and with a Tory Government in the wings, this will no doubt kick any progress further into the long grass. How many people have to suffer in silence before the decent and moral steps are taken to bring us in line with legislation that exists in the rest of the world, and why in the UK do we treat private tenants as third rate citizens? I have come to the conclusion, the secret to success is to get tenants’ campaigning on-mass in their own right with the media support behind them. If you are planning on a campaign then I suggest this is the only way forward. If anyone wants to get involved please feel free to contact me.

    [Edit by NL. I’m happy to forward emails to Debbie – email the usual address: contact at nearlylegal.co.uk.]

  7. Just to let you know that Shelter are very much aware of this and are looking at the problem as part of our broader campaigning work on improving the quality of the private rented sector. We should shortly have in place some specific action points / people we will contact and I will try to post an update.

    • Jo, good to hear it is being pursued.

      My view, which is quite possibly pie in the sky, is that to avoid the enforceability issues raised by Brass, a requirement for regular, say 5 yearly, checks would go hand in hand with a landlord licensing scheme. No up to date checks mean no membership. No membership, no s.21 etc..

  8. Don’t forget to take into account that, when the electrician inspects, he will likely not say that an installation is ‘safe’ until it complies fully with the latest standards (he also has a certain business interest) and to add icing to the cake the IEE bump up the standards every year or so such that compliance always lags. On the other hand I see dwellings weekly where the electrical system is in ‘good repair etc’ (as section 11 L&T) but the lack of protective safety devices is exposing occupiers to risk of electrocution as soon as (eg) the washing machine leaks.

  9. Pingback: Anybody Know Anthing About Electrics? - House Price Crash forum

  10. Thank you for the information on this site first of all.
    My experience with the HSE was they did nothing for us and my young family when we had a carbon monoxide leak in rented property.The landlord failed to give us gas saftey tests for 2.5 years and the last one was because i insisted. The environmental health dept failed to return my calls for 4 weeks. The Hse advised me to let the landlord replace the boiler although i had no way of knowing how long it leaked to help the medical care and tests we had. further to that our landlord gave us a section 21. There is no protection for people like me and my child.

    again thank you for the info on this iste.

  11. Gemma, if the boiler was faulty, and leaking carbon monoxide certainly is, then the landlord can be pursued via a claim for disrepair. If there is evidence of a carbon monoxide leak, this could potentially be the subject of an urgent application for an interim injunction.

    If there was any injury to yourself or your household through the carbon monoxide, and I hope that there wasn’t, then the landlord could also face a personal injury claim under the Defective Premises Act.

    The problem is that, with the exception of the injunction, these are all slow mechanisms. There also really need a solicitor to see through and funding is difficult.

    There is, alas, no protection from a retaliatory s.21 either.

  12. Hi the boiler was inspected by 2 plumbers and a gas expert and documented as leaking due to sooting. It was last given a check in 2007 as it had broken down and prior to that in 2006 so since 2004 i had one certificate because i asked for it..and one issued after boiler repair..

    My son and i have seen toxicologists and it’s heartbreaking really but my little boy did show symptoms..and at night when he was telling me he could see lights and colours in his vision i was telling him it was the angels to sit with him while he slept.. it was because of the gas

    i was once a first class grad..now i pay with my debit card as i cant perform basic math..

    the enviromental health ignored me, the hse didn’t help and the legal advice i got was not very good. we are leaving to go to france now within weeks as although we may not be as clever as we once were..we can still walk and breathe

    we did get a section 21

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.