Landlords of rented residential accommodation must have an annual gas safety check carried out on gas appliances which they provide (and related gas flues). Tenants must be given copies of the Certificate (which must be no more than 12 months old) prior to moving in and given a copy of the Annual Safety Check Certificate. Work must only be carried out by Registered Gas Safe Engineers.
There is also an ongoing obligation to ensure that the gas appliances and gas installation are in a safe condition. The occupier has various responsibilities relating to gas safety but these fall on the owner where the occupier is away and all landlords are responsible in relation to dangerous situations, whether or not the property is occupied. Unsafe appliances must not be used. The Health and Safety Executive is the Enforcement Authority. National Grid has power to disconnect dangerous appliances. There are also gas safety regulations which regulate the safety of gas appliances.
Many new installations e.g. boilers, water heaters, warm air heaters, gas fires and flued cookers must comply with Building Regulation, as well as the Gas Safety Regulations.
Legislation Regulations etc
1.1 The main regulations are made under the Health & Safety at Work Act 1974. The current regulations are the Gas Safety (Installation and Use) Regulations 1998 (referred to as the Gas Safety Regulations) which came into force on the 31st October 1998. The Gas Safety (Management) Regulations 1991 contain provisions of general application dealing with gas escapes. The Gas Safety (Rights of Entry) Regulations 1996 give authority for National Grid to enter premises and also provide for disconnection of faulty appliances.
1.2. There is an approved Code of Practice and Guidance for the Gas Safety (Installations and Use) Regulations published by the Health and Safety Commission.
1.3. Additionally, Building Regulations apply to certain new installations.
Levels of responsibilities
2. There are various levels at which a person can take on responsibility for gas safety:-
(1) A person who is carrying out installation or other work. Normally, this will be a Gas Safe Registered Engineer.
(2) The landlord as owner. In particular the owner has responsibility for compliance with Building Regulations where applicable.
(3) “The responsible person” – if the property is occupied this is normally the occupier (i.e. the tenant) but if it unoccupied then it is the owner. However, in one important respect the definition is extended to include the owner (i.e. the landlord) where the duty to deal with dangerous situations arises under Regulation 26.
(4) All persons - In certain limited circumstances duties apply generally to anyone.
(5) Employers and self-employed persons, even though the landlord is not occupying the property. Scope of landlord’s responsibilities
3.1 The Gas Safety Regulations place various duties upon Landlords (or licensors) of residential properties. They apply where premises are occupied (whether exclusively or not) for residential purposes for payment under a tenancy or licence. These regulations operate if the tenancy is for a term of less than 7 years or a periodic tenancy (including a regulated statutory tenancy under the Rent Act 1977) In other words the regulations are applicable in the same circumstances as the landlord’s repairing obligations under Section 11 of the Landlord & Tenant Act 1985. They apply to gas appliances owned by the Landlord (including their flues) and all the installation pipe work installed in the premises.
3.2 It is important to understand the different definitions used in the Gas Safety Regulations.
3.2.1 “Gas appliances” are defined as appliances designed for the use of gas by a consumer for heating lighting cooking or for any other purpose which gas can be used for. For these purposes they include any portable or mobile apparatus. Thus the obligation will extend to, amongst other things, gas cookers, gas central heating boilers, gas water heaters and gas fires. However, if the appliance is owned by the tenant the obligation will not arise in respect of that appliance or its flue.
3.2.2 “Installation pipe work” generally speaking is the pipe work which connects the meter to the appliance.
3.2.3 “Relevant gas fitting” means a gas appliance (but not one owned by the tenant) and the installation pipe work, i.e. it is both appliance and the pipe work.
3.3 Additionally, the landlord, as owner, is responsible for complying with the Building Regulations in the case of new installations. Building Regulations apply to installations of a heat producing gas appliance and any associated heating and hot water systems in use with the appliance. This will include boilers, water heaters, warm air units, gas fires and cookers with flues. Where Building Regulations apply the usual way of compliance is through work being carried out by a Gas Safe Engineer who will be a competent person through the Competent Person Scheme Operated by Gas Safe. Gas Safe should notify Building Control for the local authority concerned within 30 days and, in turn, the local authority should issue a certificate of compliance to the landlord.
Landlord’s duties as to gas safety
4.1 There are a number of separate duties imposed on the landlord as follows:-
(1) To ensure that any appliance, including the flue and installation pipe work is maintained in a safe condition so as to prevent risk of injury to any person. This is an all year round ongoing obligation over and above the obligation to carry out annual inspections in respect of appliances.
(2) As a general rule to ensure that each appliance and flue, (but not installation pipe work) is checked for safety at intervals of not more than 12 months since the last check. When carrying out the check this must include (i) the effectiveness of the flue (ii) the supply of combustion air (iii) operating pressure and (iv) safe functioning. It is not however limited to these items. This work must be done by a Gas Safe Registered Engineer. It is unlawful for anyone else to carry out the check. Each appliance/flue must be checked within 12 months of first installation and then at intervals of not more than 12 months since the last check. Thus, no more than one year must pass between each check in respect of each individual appliance (or since installation).
(3) The Engineer carrying out the check will complete a record. This record must be handed to and kept by the Landlord. It must be kept for at least 2 years. The record contains details of the appliances checked, the date of inspection, defects identified and remedial action taken.
(4) On any new letting a copy of the record must be given to each tenant for them to retain. A photocopy would suffice. It is advisable to make sure that a receipt is obtained from each tenant of the time of the letting to confirm that they have indeed received a copy of the report.
(5) On each annual safety inspection a copy of the report received must also be given to each tenant. This must be done within 28 days of the date of the check. Usually they are left at the property by the Engineer.
(6) For new installation strictly a landlord’s safety check is not required because it only has to be carried out within one year of installation and thereafter annually. Rather the Gas Safe installer should provide a declaration of compliance with Building Regulations (as well as Certificate of Compliance with the Gas Safety Regulations) to say that the Building Regulations have been complied with. In practice in this situation a landlord’s Gas Safety Certificate is often issued. To see specimens of the two forms of certificate for new installation work click here
4.2 Although the Gas Safe Engineer is responsible for notifying Gas Safe, who in turn notify the local authority, it is still the responsibility of the landlord as owner under the Building Regulations to ensure that the Building Regulation requirements are met.
The Responsible Person (occupiers/landlord)
5.1. Additionally, the Gas Safety Regulations place a number of duties upon “the responsible person” in respect of the premises. This applies to any premises. The regulations define the responsible person as the occupier of the premises or, where there is no occupier, or the occupier is away, the owner of the premises. Thus, the Landlord will be the responsible person for the purposes of unoccupied premises owned by him. The effect of the regulations is also to extend this obligation to premises under the control of the landlord e.g. those held on short term arrangements with other bodies or owners. As indicated, this obligation also extends to cases where the occupier is “away”. This term is not defined. It is not known for how long the occupier would have to be absent for this regulation to apply. If they were away for the weekend it may apply but not if they were away for a few hours shopping. Clearly it would extend to longer absences e.g. on annual holidays. The definition of the responsible person is extended when there is a dangerous situation in which case it includes the owner irrespective of whether or not the property is occupied.
5.2. Where the property is occupied the same responsibilities of the “responsible person” obviously apply to the tenant as occupier.
Duties of the responsible person
6. The responsibilities of the responsible person under the Gas Safety Regulations are as follows:-
(1) Not to use a gas appliance (or allow one to be used) if at any time he knows, or has reason to suspect that it cannot be used without constituting a danger to any person. This would include being told not to use it e.g. by an engineer attaching a notice to an appliance. Situations where there could be such a danger include:-
(a) that there is insufficient supply of air available to the appliance for proper combustion or there is incomplete combustion
(b) that the removal of products of combustion from the appliance is not being or cannot be safely carried out.
(c) the room (or internal space in which the appliance is situated) is not properly ventilated
(d) any gases escaping from the appliance or from any gas fitting used in connection with the appliance or
(e) that the appliance is so faulty or maladjusted that it cannot be used without constituting a danger to any person
(2) If the responsible person knows or has reason to suspect, that gas is escaping from the premises he must immediately take all reasonable steps to ensure that the supply is shut off. If the gas continues to escape after shut off (or a smell of gas persists) he must immediately notify the supplier. Where the escape has been stopped by shutting off the supply the supply must not be re-opened until all necessary steps have been taken to prevent a recurrence i.e. appropriate repairs have been made.
7. The Gas Safety Regulations also impose certain further responsibilities generally upon all persons. This includes landlords and tenants. These would extend to the landlord’s employees. They are:-
(1) No person searching for an escape of gas is to use any source of ignition e.g. a match or lighter
(2) No alterations are to be made to any premises which would adversely affect the safety of a gas fitting so as to result in any contravention of or failure to comply with the regulations e.g. installation/removal of a window, air bricks, extractor fans or putting extra weight on hidden pipes.
(3) Nothing may be done which could affect a gas fitting or any flue or means of ventilation in such a manner that subsequent use could constitute a danger to any person
(4) Combustible material must not be stored in any meter box
(5) Any person disconnecting a gas fitting must seal off the outlet pipe.
(6) No person to carry out work unless competent
(7) No person is to install a meter in a locked box without supplying a key
Enforcement of Regulations
8.1 The Health & Safety Executive is the enforcement authority for the Gas Safety Regulations. Breach of any of these regulations is a criminal offence. In certain instances there is a defence to show that a person took all reasonable steps to prevent the contravention. This defence can apply to failure to comply with the Landlords maintenance obligations but not in any of the other cases referred to above. In any case the offence is an absolute offence so that intention to break the regulations need not be demonstrated. Bearing in mind that the defence requires the taking of “all reasonable steps” it is likely that this defence would be of a restricted nature. For example if it was not possible to obtain access application might have to be made to the Court for an order enforcing access.
8.2 There are additional requirements in relation to houses in multiple occupation (HMOs). These include shared houses, bedsits etc (for more information about the definition of an HMO click here). Under the Houses in Multiple Occupation Management Regulations the local authority can require the production of the Gas Safety Certificate for an HMO. This must be shown to them on demand. This applies whether or not the HMO is licensable. Where the HMO is licensable then it will be a licence condition in all cases that a copy of the Gas Safety Certificate must be sent every year to the local authority.
8.3 The local authority is responsible for enforcement under the Building Regulations.
Access by the Landlord
9. As such the landlord and his engineer do not have a right of entry under the regulations. They can rely on any appropriate right of entry under the term of the tenancy agreement. Section 11 of the Landlord & Tenant Act 1985 confers right of entry on 24 hours notice where the landlord is under a repairing obligation for inspection purposes. Otherwise the occupier’s consent is required. If access is not given application could be made to the Court for an injunction to enforce entry or even for possession of the property.
Access by Transco
10. The Gas Safety (Right of Entry) Regulations 1996 give National Grid the right to enter premises where there is reasonable cause to suspect a gas escape. Their officers can enter to inspect gas fittings flues etc and to carry out tests. Save in emergency National Grid can only enter with the occupier’s consent or if authorised by a Magistrates Warrant.
11.1 National Grid can disconnect gas appliances or any part of the gas system in a property so as to avert danger to life or property.
11.2 IIf National Grid do so they must within 5 clear working days notify the consumer in writing giving details of the nature of the defect or circumstances why the power to disconnect has been used, the nature of the danger and the action taken, and advising the consumer of the right of appeal and the grounds on which an appeal can be made. The notice must also warn the customer against reconnecting the items and the penalties for doing so. At the same time as disconnecting the items the official concerned must affix a notice on the relevant items on part of the premises warning against reconnection and of the penalties for doing so.
11.3 There is a right of appeal to the Secretary of State within 21 days against disconnection. The grounds of appeal are that there was no danger justifying disconnection, the defect or circumstances giving rise to disconnection did not exist or has ceased to exist. There can be an inquiry if required.
11.4 An unauthorised re-connection is a criminal offence. There is a prohibition on re-connection without the supplier’s consent. This does not apply to reconnection for the purposes of repairs or where steps have been taken to put the defect right.
11.5 If there is a dangerous situation an engineer should disconnect or disrepair with the consent of the responsible person. If this cannot be done he should label the appliance as dangerous. The person must not then use the appliance.
Instantaneous water heaters
12.1 There is a prohibition on the installation of flueless instantaneous water heaters which are not room sealed or fitted with an appropriate cut off device before dangerous levels have built up.
12.2 There is a requirement for Landlords to ensure that no appliance of a prohibited type (i.e. certain instantaneous hot water or other gas heaters) are fitted in any room used or to be used as sleeping accommodation by a tenant. This is to provide for situations where a room containing such an appliance is to be converted into sleeping accommodation. This does not apply retrospectively.
Specific Problem areas relating to gas safety
Access to carry out landlord’s gas safety checks can give rise to problems. As the Gas Safety Regulations themselves do not confer any right of entry one needs to establish the legal right elsewhere. See 9 above. Having established the legal right how far does the landlord have to go. Forcible entry is not allowed. Keys, if held, could be used after giving due notice. Letters should be written requesting access and copies kept. An application to the Court could be considered. This could be done in two ways. The first is an injunction to enforce a right of access. Failure to comply would be a contempt of court. Normally, the Court would make a suspended order of imprisonment suspended for a period of time to allow for access. Alternatively, notice seeking possession could be served. Refusal to allow access would be a breach of the tenancy agreement. The Court could then make a suspended order for possession suspended for a period of time to allow for access to be given.
13.2. Checking work
It must be borne in mind that the offence of failing to carry out an obligation under the Gas Safety Regulations (e.g. to carry out a landlord’s gas safety check) is an absolute offence subject to the limited defence available. It is therefore the landlord’s responsibility to see that any such check is properly carried out. A landlord should consider putting in place a proper system of checking on whether the work has been carried out and if so if it has been done properly.
13.3. Tenant’s own appliances.
Problems can arise when tenants leave behind their own appliances. These will revert to the landlord and become the landlord’s property. The landlord must ensure therefore that they are checked before a new tenancy commences or alternatively, that they are removed.
13.4. Tenants installing a gas supply without telling the landlord.
A tenant may install a supply e.g. to an all electric property without telling the landlord. By definition the appliances will belong to the tenant so they are excluded from the landlord’s liability. However, any installation pipe work will not be excluded and this will be the responsibility of the landlord. Consideration therefore needs to be given to a system of periodically checking supposedly all electric properties, for longer term tenants.
13.5. Checking installation pipework.
This is not part of the requirement for the annual landlord’s gas safety check. HSE however recommend a periodic ongoing system of checks and maintenance.
13.6. No gas supply
If there is no gas supply to the property testing cannot be carried out. There is nothing in the Gas Safety Regulations to say that a landlord need not carry out the landlord’s annual safety check where the gas supply is not connected. In practice however it would not be possible to carry out the check. Obviously it would be of concern if the tenant were to have the supply reconnected and then use appliances which may be faulty. Consideration could be given to cutting off the supply e.g. by inserting a disc. Interference with services such as the gas supply is potentially an offence under the Protection from Eviction Act 1977 but there is a defence available of reasonable cause.
13.7 Covered passageways
From time to time there are incidents which highlight the possible dangers from gas appliance flues that terminate within the confines of a covered passageway between properties. A covered passageway or ginnell, can be considered as a narrow covered alleyway between two or more properties with a ceiling and/or rooms, usually bedrooms, above.
The HSE have expressed concern about this type of installation and therefore a safety notice (Technical Bulletin 150) has been issued to clarify the situation.
The British Flue and Chimney Manufacture Association have published Guidance on choosing flues.
Gas Safety Register/Corgi
14. Prior to 31st March 2009 all gas work had to be carried out by a CORGI registered Engineer. From 1st April 2009 the Gas Safe Register has taken over. Corgi Certificates issued prior to 1st April 2009 are valid but after this date the engineer concerned must be entered in the Gas Safety Register.
Notifications to Health & Safety Executive
15. Certain dangerous occurrences must be notified by the Gas Installer to the Health & Safety Executive under the reporting regulations (RIDDOR).
16.1 The Gas Appliances (Safety) Regulations 1995 (GAR) regulate the safety of gas appliances. These are defined as appliances burning gas used for cooking, heating, water production, refrigeration, lighting or washing. There is a requirement for CE marking in appropriate cases. GAR is made under CPA87 so as to implement relevant EC directives.
16.2. GAR implements what are called essential requirements. These include provision that appliances must be so designed and built as to operate safety and present no danger to persons, domestic animals or property when normally used. They must be accompanied by appropriate technical instructions and warning notice when placed on the market. Proper materials must be used. There is provision as to method of design and construction, prevention of unburnt gas release, proper ignition and combustion and provision relating to rational use of energy and temperatures. Food which comes into contact with an appliance must not have its quality impaired.
16.3 No person may supply an appliance which, when normally used, is not safe. For these purposes normally used means used when the appliance is correctly installed and regularly serviced as recommended by the manufacturer and for its intended purpose or in a way which can be reasonably foreseen.
16.4 Liability is extended in that any person who without reasonable excuse
contravenes or fails to comply with this requirement in so far as it applies to injury to or the impairment of the health or safety of any domestic animal or damage to any property is also guilty of an offence. The maximum penalty in this case is 3 months and/or a fine level 5 (or both)
16.5 The Regulations do not usually apply to second hand goods. With regard to
“second hand goods” the definition under the Regulations is the supply by any
person of an appliance or fitting which has at any time been put into service by another person and is supplied by a person who supplies appliances or fittings in the course of any business (whether or not after repairing/reconditioning).
16.6 It must be remembered that the provisions of the Gas Safety Regulations (set
out above) also apply. They operate whether or not the item is a second hand item.
Landlord’s repairing responsibilities/liability for defective premises
17.1 In the case of a residential tenancy, the landlord is under a statutory implied duty to keep the gas installation in repair and proper working order. For more details of this obligation click here.
17.2 Under the Defective Premises Act if a tenant or resident is killed or injured by reason of a defect in the gas installation then potentially the landlord is liable to pay compensation in respect of the person injured or killed. Likewise, damages are payable in respect of any person or property belonging to them which is damaged in consequence. For more information about the Defective Premises Act click here.
18. As has already been explained, Building Regulations also apply (as well as the Gas Safety Regulations) to certain new installations. As with all Building Regulations the landlord as building owner is the one who is legally liable for non compliance. Work should be undertaken by a Gas Safe Registered Engineer who is licensed to carry out the work in question. Through the Competent Person Scheme operated by Gas Safe local authority building control should be notified within 30 days. They, in turn, will then issue a Certificate of Compliance for Building Regulations. When it comes to selling or mortgaging the property the landlord may well have to be required to provide evidence of compliance by producing the local authority’s compliance certificate. If this cannot be produced retrospective notification will have to be given to Building Control and an additional fee paid. If the landlord therefore does not receive a Certificate of Compliance from the local authority he/she should check the position with the engineer concerned and failing a satisfactory response with Gas Safe. Ultimately, if the matter could not be resolved another Gas Safe registered engineer would have to be employed to recheck the work. Click here for further details regarding notification to Local Authority Building Control.
Housing Health and Safety Rating System
19. Under the Housing Health and Safety Rating System carbon monoxide, combustion products, and uncombusted gas are hazards. If this hazard exists at the property the local authority can carry out a Housing Health and Safety Rating System assessment. If the risk is sufficiently serious as a result of this hazard that it is classified as a Category 1 hazard then the local authority must take enforcement action against the landlord. If it is a less serious Category 2 hazard they have discretion to do so. For more information about the Housing Health and Safety Rating System click here. Works may therefore be required as a result which could lead to the property being upgraded/improved to deal with a particular hazard.
As a result of an alert issued by the Health and Safety Executive there are responsibilities in relation to concealed gas flues in premises. Inspection hatches will be required so as to enable access to the flues in order that they can be checked when needed e.g. a gas safety check is carried out. Read the HSE alert.