Do landlords who already have an EICR need a new report to comply with the new electrical safety regulations?

This article is by Robin Stewart of Anthony Gold

The Government published the draft Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 in January which, subject to parliamentary approval, will impose new electrical safety standards across in rented property from July 2020.

The new regulations will be phased in – coming into force on 1 June 2020, starting to apply to ‘new tenancies’ on 1 July 2020 and then subsequently applying to existing tenancies from 1 April 2021.

Here ‘new tenancies’ is defined as those granted from the coming into force of the regulations, which is on 1 June 2020 (not 1 July 2020 as you might expect). In practice, this is going to mean landlords will need to ensure that they are compliant when granting any new tenancy from 1 June 2020 onwards.

The regulations do not expressly exclude statutory period tenancies or renewals to the same tenant from the category of ‘new specified tenancy’, so the end of a fixed-term tenancy will trigger the application of the duty if the tenant remains in occupation.

For many landlords obtaining an Electrical Installation Condition Report (“EICR”) will be nothing new. Landlords of HMOs must already obtain EICRs to comply with HMO management regulations, and other landlords will have had such inspections performed simply as good practice or to comply with licence conditions.

This was recognised in the Ministry of Housing, Communities and Local Government’s recent PRS Newsletter:

Most landlords are highly responsible and will already have safe electrical installations, so are advised to start early and book an inspection.

Once landlords have an Electrical Installation Condition Report from a competent inspector showing their property has a clean bill of health, they won’t need to worry about it for another five years. Letting and managing agents should also start to consider scheduling inspections in the properties they manage.

We know that many landlords already have had inspections in the past 5 years. There will be no requirement for those landlords to renew this until the 5 year period is over, though they will need to be able to provide the report when required.

The Government’s view is therefore that where landlords have obtained an EICR in the last 5 years, there is no need for to have a new check performed, and landlords simply need to make sure that they keep a copy of the report.

But this appears to conflict with the obligations as set out in the draft regulations – at least if it is read literally. The duties to have electrical installations inspected and tested at regular intervals can presumably be complied with through an existing EICR, but the draft regulations also introduce a separate obligation at Regulation 3(1)(a) to “ensure that the electrical safety standards are met during any period when the residential premises are occupied under a specified tenancy”.

The term “electrical safety standards” is defined as “the standards for electrical installations in the eighteenth edition of the Wiring Regulations, published by the Institution of Engineering and Technology and the British Standards Institution as BS 7671: 2018”.

An electrical installation installed in 2017 would hopefully have complied with the seventeenth edition of the IET Wiring Regulations, but it is likely that there will be some minor non-compliances with the current standard. An EICR obtained in 2017 would still be valid now, but it would not show that whether the installation complied with the higher Eighteenth Edition standard.

Further, an EICR report obtained today might well not record non-compliances with the Eighteen Edition standard where the installations are safe and do not need any upgrade. Electrical standards have changed significantly in the last ten years and an installation can be non-compliant in a way which does not mean it is dangerous.

An EICR might alternatively record minor but not hazardous non-compliance as a Code C3 recommendation. In the past C3 has meant that an improvement is recommended by not necessary. The new draft regulations do not reflect this nuance, simply requiring properties to comply with the Eighteenth Edition standard.

It appears from the PRS Newsletter that the Government does not expect landlords to bring properties up to the Eighteenth Edition standard provided that the electrical installations are safe and that a valid EICR has been obtained – meaning that they will not expect every Code C3 recommendation to be implemented.

What should landlords do if they already have an EICR?

Obviously where there is a ‘red flag’ hinting that an installation might no longer be safe an electrician should be engaged urgently. Visual inspections can spot serious problems and there is no good reason not to carry out basic checks.

Where the landlord has obtained an EICR within the last five years, in practice, it is likely to be acceptable to wait before obtaining a new EICR.

However, it will be difficult for a landlord to be completely satisfied that they are meeting “electrical safety standards” at the Eighteenth Edition standard when the most recent report was obtained from an electrician applying the older standard.

Where local authorities have concerns, enforcement officers can serve a remedial notice, or arrange remedial action themselves – but they can also impose a financial penalty of up to £30,000 for a breach of the Regulation 3. As there is no ‘reasonable excuse’ defence available it is difficult to see how a landlord could defend themselves, even if they reasonably thought that they were complying with the new standard.

While arguably the safest thing to do will be to obtain a new EICR in all cases, electricians are in short supply this may prove to be impractical.

Landlords should look out for further guidance from the Ministry of Housing, Communities and Local Government, and they make wish to take the approach recommended by the Residential Landlords Association to landlords who already have EICRs and wait for this guidance to be published before taking further steps.

This article was first published on the Anthony Gold blog.