Landlord access for gas safety

Last year, Rosie Du Rose, a director of Home Group, met the then housing minister Mark Prisk to express concerns about the difficulties of gaining entry to its 55,000 properties to carry out annual gas safety checks.

Landlords, she explained, often find it difficult to get tenants to respond to requests to make, and then honour, appointments to have an engineer service the boiler or solid fuel fire in their home. This can simply be because tenants don’t like having strangers barrelling around their homes, nosing around their radiators, checking flues and poking around their kitchens, or that they resent the inconvenience of having to wait for hours for an engineer.

Knowing the dangers
However, landlords are well aware of the dangers of failing to check and service boilers. ‘If gas safety checks can’t be completed it isn’t just a small number of individuals in one property at risk, but potentially their neighbours as well,’ explains Home Group’s chief executive Mark Henderson. ‘It is also incredibly frustrating for housing staff who have to go back to the same properties time and time again as they can’t get to the boilers to perform these checks.’`

There are also regulatory repercussions for associations that fail to carry out gas safety checks in the requisite one-year timeframe.. Last October, Gallions, now part of Peabody, was placed on a Homes and Communities Agency watchlist after a tenant complained their boiler had not been serviced for three years. Gallions was able to produce documents showing it had made repeated attempts to enter the property and engage with the tenant, but because the legal avenues had not been exhausted, and the tenant had potentially been exposed to risk for two years, the HCA ruled it was the first example of a breach of its serious detriment test, which is used to determine when it would intervene on consumer matters.

Similarly, Guinness Partnership reported itself after discovering a number of out-of-date gas safety certificates, while Your Housing Group was also placed on the HCA watchlist in February, after 60 of its 33,000 properties were unchecked.

As a result, housing associations have joined Home Group in calling for a change to the law so they can enter their properties without the consent of tenants. They are pushing for an amendment to the Gas and Safety (Installation and Use) Regulations Act 1998, which would give registered providers and local authorities the power of entry, without resorting to lengthy and expensive court processes, purely to use in respect of gas safety. Since Ms Du Rose’s meeting with Mr Prisk, 23 associations have rallied behind Home Group efforts to lobby Health and Safety Executive for the change. However, there are few signs their efforts will result in any major changes to the rules any time soon, as meetings with Mr Prisk did not lead to any firm commitments.

So why is it proving so difficult for housing associations to gain entry to tenants’ properties to carry out gas safety checks - and to what extent do landlords really need the extra powers they are asking for?

Gaining access
At present, if a tenant reads the letters they are sent and agrees to allow checks, there is no problem. However, if they refuse to cooperate, then a housing association must get a court injunction allowing them entry.

According to Christopher Skinner, solicitor at Capsticks Solicitors, the main challenge facing landlords is the amount of time it takes to obtain an injunction. ‘Social landlords struggle when they do not build into their processes an insurance period to allow the legal process to take full effect,’ he says. ‘The legal process itself on this is not actually laborious at all, but very straightforward and the biggest problem is the availability of court time and the speed at which the court can list hearings and deal with the matters.

‘For example, injunction hearings, even in the most efficient courts, can still take two to three weeks to list and hear. However, the timescale and the procedures social landlords and then the courts work to on this means that it can take between two and three months to get everything through the process of obtaining either an injunction order or a possession order. In that time, many safety certificates will have expired.’

This is a worry for landlords, considering the HCA has taken action against associations for as little as one tenancy with an out-of-date gas safety certificate. So the process can take up a quarter of the year, every year. And it’s costly too. ‘Another driving force in our decision to lobby for changes to the regulations is that the process as it stands is complicated, incredibly costly and benefits no one but the lawyers,’ states Mr Henderson.

Ultimately that means we have less money to invest in our communities and can build fewer new homes.’

Home Group claims that in 2013 alone, it referred 1,432 of its properties to its legal department because tenants refused access for gas checks. It referred 223 of these cases to the county court, which cost £39,025 in preparatory legal costs, with £175 per case in court fees on top. This cost has risen to £280 per case in 2014.

In extreme cases it can take even longer: associations may have to apply for possession of the property in order to carry out the safety check, or as a last resort, have the tenant committed to prison for contempt of court if they refuse to vacate or allow entry - an option that has been applied by the judiciary very rarely in the past.

Local authorities, in contrast, do have certain legal provisions that enable them slightly easier access to tenants’ properties: they can apply for warrants of entry through the magistrates court: a simpler and less expensive process and force access to carry out gas servicing rather than reverting back to the courts, as housing associations have to do currently.

In 2009 Cambridge Council reworded all of its tenancy agreements to include a right of entry into the property, if all steps to engage with the tenant had failed, circumventing the need to obtain warrant of entry to achieve a gas safety check. This is something housing associations are unable to do. The 8,500-home council logs each letter sent to tenants, and hand delivers the final warning, to ensure all contact is recorded. Cambridge has also encouraged tenants to register for their annual gas service with a monthly draw for tenants due a check, hoping a positive, rather than hectoring, approach would reap dividends and a higher success rate.

Fighting resistance
Landlords may come up against worries from tenants however, about increased legal powers of access being built into tenancy agreements, allowing forced access without notice.

Capsticks’ Mr Skinner notes: ‘To give all landlords a power of entry to a tenant’s property is, of course, going against the fundamental principle of exclusive possession. It is also likely to be perceived as a more risky power to give to the private sector.’

It is these apprehensions about giving up parts of exclusive possession the consortium of landlords will have to overcome if they are to lobby successfully. Currently, tenancy agreements are written to allow tenants quiet enjoyment of the property they are renting: any change to the tenancy allowing forced entry, even if only in exceptional circumstances, such as to carry out an annual gas safety check could cause some tenants concern.

Corgi, the gas regulator, shares the housing associations’ view. Claire Heyes, Corgi’s joint chief executive, points out: ‘It’s estimated that access issues cost the sector somewhere in the region of £70 million pounds each year, with a potential three quarters of a billion being wasted over the next 10 years unless we do something.’

The HSE argues for a balance between the landlord and the tenant: ‘Effectively it is the contract the landlord makes with the tenant that [they] should allow access for maintenance and safety check work that needs to be carried out’.

Currently, landlords do have a right to request access for repairs and maintenance works, with the notice period written into tenancy agreements. The HSE maintains it is up to landlords to use the current legislation to their best advantage.

The challenge for landlords will be to demonstrate to the HSE that they have genuinely tried everything within their current powers to fulfil their obligations, and that these powers will enable them to ensure tenants are safer, without jeopardising their right to peaceful enjoyment of their property. Whether landlords can be more proactive in building in ‘insurance periods’ in gas safety check timetables, working on awareness campaigns and education schemes to persuade tenants of the painlessness of the checks, instead of lobbying for changes in the law, will be the test.

Landlords, though, will argue that tenants’ lives are at stake if they are not given the powers they are requesting.

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