Not So Alarming

There are new provisions requiring smoke and carbon monoxide detectors in residential properties.

This announcement has had an interesting genesis! The Government announced on 11 March 2015 that it would be utilising powers it had taken to itself to require smoke and carbon monoxide alarms to be fitted in residential property. However, they did not make clear in that announcement what powers they were proposing to utilise. On the same day the Energy Act 2013 (Commencement No. 2) Order 2015 was made and it brought into effect s150 of the Energy Act 2013 from 11 March 2015, the following day. The small problem with this was that s150 requires that landlords fit an alarm of a standard to be specified in regulations and that there is a penalty for not doing so which is to be specified in regulations. However, the Order did not specify the type of alarm or penalty. Therefore on 11 March landlords were left with a legal obligation to fit an alarm of an unspecified type in an unspecified place with an uncertain penalty for not doing so.
This is about to change as the Smoke and Carbon Monoxide Alarm (England) Regulations 2015 are now available, albeit only on draft form at this stage. These regulations set the alarm requirement, the penalty process, and the level of penalty.
The obligation applies to all residential landlords in the private rented sector. Longer leases of over seven years and accommodation shared with the landlord is excluded. There are some other exclusions which I will not bother you with here. The obligation is to fit a smoke alarm on each storey of the property that is adapted or used as residential accommodation and also to fit a carbon monoxide alarm in any room which contains a solid fuel appliance.

Comment
This has all been pretty badly done to be honest. There is no definition of what constitutes a smoke or carbon monoxide alarm, by reference to a British Standard or to anything else. So it seems that any old piece of junk will do. In reference to Carbon Monoxide alarms the requirement is the same as the one that already exists under the Building Regulations. So it is hardly an improvement and certainly not the one we thought we were getting.

Enforcement
Where a local authority believes a landlord is not in compliance then it is obligated within 21 days to serve a remedial notice on him. If such a notice is served then the landlord has 28 days to make representations to the local authority. Irrespective of those representations the landlord is required to comply with the notice within the same 28 day period. If the landlord does not comply then the local authority is obligated within 28 days of becoming satisfied that the notice has not been complied with to arrange its own action. Perversely there is no power for the local authority to recover the costs of that work.
The local authority is also empowered to serve a penalty notice on the landlord, within six weeks of becoming aware that he has not complied with a remedial notice, requiring him to pay a penalty of up to £5,000. The notice can specify a lower penalty if it is paid within 14 days.
The landlord has up to 28 days to request the authority to review any penalty notice. After that appeal lies to the First Tier Tribunal. The regulations do not make clear which emanation of the FTT should be appealed to but the explanatory note makes mention of the rules of the General Regulatory Chamber so I assume that this is the one intended.

HMOs
There is also a change to the Housing Act 2004 to specify a compulsory condition to be applied to all HMO or selective licences covering these same requirments. However, as the HMO Management Regulations require all properties of be fire safe and those are generally read as requiring a mains powered, battery backed, interlinked set of smoke detectors it seems as though this new condition adds very little to the mix.

Duty Issues
This new duty may be a source of some concern to local authorities as it potentially means that where there has been a fire and the local authority can be shown to have been aware of the lack of smoke detectors then injuries may be laid at its door if it can be demonstrated that a working smoke detector would have led to a different outcome in relation to the fire.

These new obligations apply solely to England.

About D

D is a solicitor specialising in landlord and tenant matters with a London firm.
Posted in Housing law - All and tagged .

4 Comments

  1. Yet another regulation putting the onus on a 21 day Local Authority turn around. I bet the LAs are loving this, in combination with the new emphasis on repair obligation improvement notices under Dereg bill. And all under the looming spectre of 40% budget cuts.

    At least LLs can get away with a slapdash response in respect to this one…!

  2. I’ve just looked at s150 as it appears on legislation.gov.uk and it seems to me that s150 doesn’t require a landlord to do anything yet; it just gives the government (through the Secretary of State) to make regulations by statutory instrument (subject to the draft regulations being approved by both houses).

    According to the draft regulations (also on legislation.gov.uk) they have not yet been laid before Parliament, and are not due to come into force until 1 October 2015 (assuming they are actually made at some point before then).

    Am I missing something?

    • No, that is entirely right. Except that s.150 does require the landlord to comply with something, it just doesn’t say what the something that they have to comply with actually is, as that will be the regulations.

  3. SORRY: I meant to say, “gives the government (through the Secretary of State) the power to make regulations”

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