Updates

The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020

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30th April 2020

New regulations in relation to electrical safety in privately rented dwellings are due to come into force on 1 June 2020.

In a nutshell, the new regulations will mean that a private sector landlord must:

• ensure that every fixed electrical installation within rented premises is inspected and tested at least every five years by a qualified person.
• obtain a report of the results of the inspection or test and supply it to each tenant within 28 days, and retain a copy until the next inspection is due.

The regulations will require the landlord to provide a copy of electrical testing reports before a tenant goes into occupation. Prospective tenants will have the right to request the reports from their prospective landlords.

Enforcement of the regulations will lie with the relevant local housing authority, who may request copies of the relevant reports, require or arrange remedial action, and impose financial penalties of up to £30,000.

It is worth considering the regulations in some detail:

Application

The new regulations will to:

• All new ‘specified tenancies’ from 1 July 2020
• All existing ‘specified tenancies’ from 1 April 2021
• Tenancies in England only

A ‘specified tenancy’ essentially means every assured tenancy or assured shorthold tenancy in England that is not within the list of exempt tenancies. The exemptions are the usual categories: tenancies from registered providers of social housing, accommodation shared with the landlord, long leases, student halls, hostels, hospices, care homes etc. Full details of the exemptions are found in schedule 1 of the regulations.

What needs to be done

The Regulations provide two key requirements:

• Firstly, the landlord must ensure that ‘electrical safety standards’ are met during any period when the residential premises are occupied under a specified tenancy. ‘Electrical safety standards’ is defined by the Regulations as the eighteenth edition of the Wiring Regulations, published by the Institution of Engineering and Technology and the British Standards Institution as BS 7671: 2018.
• Secondly, the landlord must conduct, and be able to evidence, inspection and testing of every electrical installation in the premises by a qualified person and at regular intervals. An electrical installation is defined by reference to the Building Regulations 2010 as any ‘fixed electrical cables or fixed electrical equipment located on the consumer’s side of the electricity supply meter.’ The requirements therefore only apply to fixed or wired-in appliances as well as the electrical wiring, sockets and such apparatus. The Regulations provide that ‘regular’ means that inspections must be carried out at least every five years.

Initial Requirements

The Regulations are specific that the first inspection/testing must be carried out:

• Before any new tenancy commences; or
• In the case of an existing tenancy, by 21 April 2021.

Therefore, all existing private sector landlord may have to make provision to inspect and test their electrical installations within the next 12 months.

Thereafter, testing/inspection must be performed at least every 5 years.

Record Keeping

The landlord must:

• obtain a report from the person conducting that inspection and test, which gives the results of the inspection and test and the date of the next inspection and test (reg 3(3)(a)); and
• retain a copy of that report until the next inspection and test is due and supply a copy to the person carrying out the next inspection and test (reg (3)(3)(d);

Provision of reports and information to tenants and others

The landlord must

• Supply a copy of the report obtained to their existing tenants within 28 days of the inspection and test
• Supply a copy of the most recent report to:

1. any new tenant of the specified tenancy to which the report relates before that tenant occupies those premises
2. any prospective tenant within 28 days of receiving a request in writing for it from that prospective tenant

Note that the report must be given any new tenant before they enter into occupation. This mirrors the requirements in relation to gas safety certificates. Thus, in order to avoid sanction, landlords or their agents should arrange for the reports to be given to the tenant before the tenant is given the keys and a dated/timed receipt should be obtained from the tenant for the landlord’s records and prove timely compliance.

The landlord is also obliged to provide a copy of the most recent report within 7 days of any request from the local housing authority.

Issues identified in a report

If a report identifies an issue with an installation it must be rectified within 28 days or any shorter period that the report may specify. Following remedial work, written confirmation that the installation is now compliant with the relevant standards must be obtained and provided to the tenant and to the local housing authority (the latter requirement appears to suggest that the local authority must be supplied with confirmation of remedy in any event, whether or not they have already been involved in relation to the property, whether this is what the draftsperson intended is not clear).

Sanctions

First of all, it is important to note that the regulations do not provide for any sanctions in relation to the service or validity of section 21 notices or the landlord’s ability to obtain possession of the premises.

If the local housing authority has reasonable grounds to believe that the regulations have been breached, the local housing authority are empowered to serve a remedial notice on the landlord, requiring the landlord to take remedial action within 28 days.  The local authority must serve any notice within 21 days of the day that it decides that it has reasonable grounds to believe that there has been a breach.

The landlord may make representations in response to any remedial notice, upon receipt of which the notice will be stayed pending consideration of the representations. The notice will then either be confirmed or withdrawn. If confirmed, the landlord must comply with the notice within 21 days of the confirmation.

If a landlord does not comply with a remedial notice, the local housing authority may arrange remedial action itself and recover its costs from the landlord.

In urgent cases, where there has been no compliance with a remedial notice, the local housing authority, with the permission of the tenants or other occupiers, may arrange urgent remedial action upon 48 hours to the tenants.

The local housing authority also has a general power to impose financial penalties for any breach of the requirements to test, inspect, retain and provide reports under regulation 3. The local housing authority must be satisfied beyond reasonable doubt that there has been a breach, but, if so satisfied, it may impose any financial that it determines, up to £30,000. This does not involve a referral to the Magistrates Court.

However, before imposing any financial penalty, the local housing authority must serve upon the landlord a ‘notice of intent’ within 6 months of it being satisfied that the landlord is in breach of the regulations (unless the breach is continuing, in which case the notice of intent can be served at any time). The landlord then has the right to make representations before the penalty is confirmed. The landlord then has a further right of appeal within 28 days of service of the final notice confirming the fine. Unpaid financial penalties may be recovered as a debt in the County Court.

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