Gas safety – landlords obligations
Getting an annual gas safety check is one of the jobs you must do if you are a landlord.
You are required to arrange for a qualified gas installer, registered with the Gas Safe Register to carry out an inspection, and then provide a certificate. A copy of which you then need to give to your tenant.
But what do you do if the tenant won’t agree to the gas safety inspection?
This is a discussion which we had last week on the 4walls property forum (this is a link to the start of the relevant thread).
My advice, which originally came from an official at my local Health and Safety Executive, is that you have to give it three tries. So:
1. Send a letter making the appointment. If the tenant does not let the inspector in then,
2. Write a letter explaining why it is necessary. If they still don’t respond then
3. Write another letter asking them to contact you urgently, and emphasizing that the inspection is for their safety.
If, the HSE Officer told me, you can prove that you have made every effort (and at least 3 attempts) you are unlikely to be prosecuted for breach of the gas safety regulations. Although he added, it might be an idea for you to let the HSE know what had happened. (Note that this advice is also on the HSE web-site.)
Dissension on the 4walls forum
However when I put this view forward on the forum, some were unhappy about it. One landord (whose tenants last year had refused to allow the inspection, and who had then discovered a gas leak after the tenants had left) said:
I decided, after my horrors last year, that i would MUCH rather be before a judge explaining why I had “forcibly entered and allegedly harrassed” a tenant to do a LGSC – than be before a judge explaining why my tenant was dead because i had not forced the issues of access for a LGSC…..
Subsequently referring to a case she had been told of where
a LL argued that his tenant had refused him entry to do the LGSC and that the LL therefore had no legal responsibility for his tenants death – the judge had none of it and said he should have tried harder… and i can’t recall his punishment… but it was very very severe.,,,,,
I have asked if this case is reported anywhere but I suspect it is not.
Another solution suggested on the forum, in a situation where the tenant had changed the locks and refused to answer all attempts at contact, was to turn the gas off at the mains outside. This was apparently on the advice of both CORGI and the agent.
But what do other landlord readers think about this? Do you follow the three step procedure and then consider you have done all you are legally required to do? Or do you consider that it is better to ensure that the property is safe by going in anyway to do the inspection, or cutting off the gas supply? What do lawyer readers think of this?
Note – since this post was published I have now completed a ‘Gas Access Kit’ complete with DIY injunction guidance which you can read about here.
There is also a free information series here.
There is a problem with the suggestion that the gas be shut off. If a landlord has a duty to provide habitable housing and the gas service is required for heating or hot water, the landlord can not legally turn off the gas and continue to rent the property.
It makes sense that repair work might require an interruption in the gas service. It also makes sense that the tenant can bar the landlord from entering (the basis of an AST). What does not make sense is the landlord withholding gas (or water, etc) to force the tenant to allow entry. Unless there is a known emergency, terminating service is a step too far from what I can tell.
I would follow the 3 step process outlined and also copy in the HSE folks so they are made aware of the issue. A CYA exercise rather than true closure.
At the end of the day a tenant is within their legal rights (quiet enjoyment?) to deny entry. The landlord should not try to force or use coercion to gain access.
Thank you for your comments John. I agree.
I also think that a landlord should think very carefully indeed before cutting off any services, as this can be deemed harassment, which is a criminal offence.
I have experience from a case brought by my client at my former firm. It was not reported as it only reached High Court
T lived in a house for many years. L never carried out any servicing of the gas fire.
NOTE! T suffered Carbon Monoxide poisoning but at this time it was NOT mandatory to carry out gas checks (they came in in October 1998)
Anyway – regardless of the fact that no gas checks were required, L was liable under s.4 of the Defective Premises Act 1972 – This provides that L is liable where he “knew or OUGHT to have known”. T never reported any defect. L had not visited house for several years.
T was contributory negligent 75% for failure to report defect.
Nonetheless, T was brain damaged to a vegetative state. Compensation + costs was circa £1.5M.
L did not have insurance.
L was also given a large fine by the HSE in a criminal prosecution, but spared jail.
At the time L had 6 houses, a squash club and a chapel ready for conversion. He was retired and living comfortably. By the time the case was finished, he was ruined. Bankrupt and a completely broken man. He was coming into the office smelling of alcohol and urine.
Now gas checks are a legal requirement and it is a criminal offence not to comply. As it’s a strict liability, they MUST be done. Section 11 (6) of the Landlord & Tenant Act 1985 provides that a tenant MUST provide access for repair on notice (24 hours). This provision of the Act is expressly clear – it must be so given that L has a duty to maintain and repair and this cannot be frustrated by the tenant. Also, Warren -v- Keen 1953 LJ Denning provided that a tenant must act in a tenant like manner – this would include providing access for repair and would IMO clearly override any right to quiet enjoyment.
When looking at statute law, the courts look at the “intention of parliament”. The courts would always deem that a L must carry out a gas safety check irrespective of whether a tenant wants to refuse access or not.
Where I have an obstructive tenant, after various letters, the final action is to confirm that we will attend under s11(6) and if necessary I we will change the locks to gain entry, but provide a key to the tenant upon completing the check – holding the tenant responsible for the cost due to their actions. By confirming in writing that this will be done, and making it clear that you will (and do) provide a key, you are protected from any claim for harassment or unlawful eviction.
Amazingly they are always there to let you in.
If the matter ever came before the courts – or police – I have no doubt that they not give a tenants claim any sympathy and I would be surprised if any right minded lawyer would even contemplate a claim based upon such questionable merits.
Thank you for that Glen, that is most interesting. The Defective Premises Act does impose an obligation when landlords ought to have known about a defect. However, I still have difficulty with the idea that the statutes authorises a landlord to go in when the tenant clearly prohibits this.
If the Police have to get a warrant from a Magistrate to gain access, is it right that a landlord should be able to do this to carry out repair work, with no judicial authority?
Last year i had a tenant refuse me access for a LGSC for nearly 4 months, even making her own appointments then refusing to let the Gas Engineer in. Each appointment i thought, surely she will let him in today.. and she never did. Finally i evicted her and the day after, when i attended to change the locks, my gas engineer found a serious gas leak… i felt the blood drain from my face.. She had two kids…
I have decided that in the future i am going to write to the tenant 3 times only, over a 3 week period, starting a month ahead of the due date. If they do not let me in, i will write and say i am entering the next day, with or without their permission, and that they will be given a new key, and will be charged for this key and new lock.
I would much rather be in a court explaining to a judge why i “harrassed” a tenant or “breached their peaceful enjoyment” than be in a criminal court facing manslaughter charges, and having someones death on my conscience….
It cannot have been Parliament’s intention, surely , to enforce a repairing obligation onto a Landlord without also giving him/her the legal authority to gain entry to complete those repairs ?
How do other landlords approach this ?
Could Health & Safety legislation could also come into play here Tessa ?
Both LL & T have a duty to behave in a Safe manner – and if i am putting another’s life at risk by my failure to effect entry – might i get prosecuted under H&S legislation as well ?
Tricky one.
The relevant regulations, The Gas Safety (Installation and Use) Regulations 1998, set out the absolute requirements of the Landlord. No get outs, But at at 36(10):
“Nothing done or agreed to be done by a tenant of relevant premises or by any other person in lawful occupation of them in relation to the maintenance or checking of a relevant gas fitting or flue in the premises (other than one in part of premises occupied for non-residential purposes) shall be taken into account in determining whether a landlord has discharged his obligations under this regulation (except in so far as it relates to access to that gas fitting or flue for the purposes of such maintenance or checking).”
As I read this, it means that the LL has to get the check done and can’t accept the tenant’s say so, for example, nor can the LL rely on a tenant’s promises. But that last part suggests that perhaps a tenant’s actions in relation to access can be taken into account in determining whether the LL has discharged their obligations.
That said, it is not necessarily an interpretation I’d rest easy relying on when facing a potential prosecution.
My view is that relying on the 3 shots approach is also risky – when a prosecution and/or dead tenant could be the result. Tenants can be awkward and, on occasion, downright irrational (and possibly have mental health issues), but it would be foolish for a LL to rely on the tenant’s foibles (or indeed health issues) as a get out.
A difficult position, I’d agree, but I’d suggest – after trying three times – contacting the local HSE (their views apparently vary) with copy correspondence and asking for their opinion on what should be done. If they reply in writing that you have done all you can reasonably be expected to do, you should be able to rely on that in defence to a prospective prosecution. If not, then the quickest and easiest answer is an injunction order application. It costs, of course, but should be recoverable (in principle) from the tenant.
Forcing access without consent or an injunction order is absolutely a bad idea.
A weird one this. Common sense solutions seem entirely logical and reasonable but as pointed out above, could lead to allegations of harassment. But I fear the argument may be a bit academic. As a TRO, responsible for prosecuting such offences I doubt if I would seriously take action for harassment with a background story of that kind.
Cutting off gas to prevent an accident? Might be a bit of an over-reaction but if there was strong evidence or belief in a gas leak, I would take that into account. Forcing entry? Again not entirely in procedure but I would want to know full chapter and verse about why they felt there was a need to force entry before throwing summonses and injunctions around willy nilly.
Interim Relief order for entry has always been my recommendation to landlords. Nearly Legal raises the prospect of tenants with mental health problems and in my experience that is commonly the aggravating factors in tenants not letting landlords in.
My advice? If you cant gain access contact your local TRO/housing advice team and discuss it with them. At least let them know your plans before acting
Thanks go to all who have written. More so to the folks who actually practice or otherwise offer legal advice as the extra depth has framed the issue.
Ultimately there is a number of issues and there needs to be some balance. The landlord cannot just take action in an effort to protect themselves while otherwise harming the tenant. If the tenant has acted irrationally and they have diminished capacity bringing in the government entities to offer advice can work. They might be able to explain to the tenant why it is OK to allow access.
I would say there is no clear black and white answer. Going the extra yard and running an efficient business that has a track record of doing the right thing will help the landlord’s position. Fear of prosecution does not appear to be justification for trespassing or other possible criminal acts.
Tessa,
We think you are completely correct. Trying to explain to a judge that it was ok to enter into the property because you needed a GSC will do little good. It may reduce the level of damages the tenant will be entitled to claim but it will still do little good and will certainly not amount to a defence.
The High Court endorsed an injunction for access to carry out a GSC earlier this year. This is an irritating route for the landlord but undoubtedly the correct one and any suggestion to a judge that you had to enter to carry out a check will probably be met by the suggestion that an injunction should have been sought.
There is never a good reason to enter onto residential property over a tenant’s clearly expressed objections.
I understand that Ll needs to access property but while u are. At work and have 2 children under the age of 3 turning your gas off on cold night when u pay full rent and council Tax and leaving ur front door a mess unexeptable What action do u think I should take.
The view of the lawyers on this post is that entering a property against the tenants wishes is illegal unless they have obtained an injunction through the courts.
My understanding is that cutting off essential services will be deemed harassment (whether the landlord intends this or not), unless it is a case of emergency (eg a known gas leak).
Have a word with the Housing Officer at your Local Authority about it. You may also be able to find a solicitor willing to act on a no win no fee basis.
Sorry but this is very one sided, as a tenant I had to allow the council access to do the gas check and clean. Now at that time I was already waiting on them repairing the appliance as it was faulty and not working. That was nearly two weeks before the check. They arrived to do the clean and check, found it to have a faulty valve and did not even clean it but left it turned on and went home. I noticed a smell of gas so I opened all my windows and had to wait until the morning to get the gas board out. They condemned everything. It then took a few days to get the council to fix the problem. My meter used £2.30p of gas during the leak after the cleaner had been. That’s a lot of gas into my living room and if I had not left all the windows open I would not be here to write this. As stated there are two sides to the coin. I no longer trust them to carry out a simple clean of appliances and sure as heck wouldn’t be able to sleep due to worry if they did.
Forgot to mention that my wife and myself are disabled and we did not even get an apology from them. After I complained all they seemed concerned about is covering up their mess.
I assume that you are a Council tenant? I should mention here that this blog is mainly about the private sector but Local Authorities are also subject to most of the same rules.
Assuming you are a Council tenant, you could try making a formal complaint (there will be leaflets explaining how to do this) or speaking to your Local Councillor about it.
James,
Thanks for contributing.
Technically, I am not sure you had to let someone into your home as you have the legal right to deny entry. It makes no sense from a heating and safety point of view to block a gas maintenance person if there is reason to believe there is a problem. Hence the conflict that is being discussed. Which right or which risk is more important?
Clearly the people who started the work at your home did not leave things in a safe condition. As Tessa mentioned you can complain to the council so that the problem does not happen to someone else. Well done on making sure the place was well vented while you had a gas leak. I am somewhat surprised that you could not get a gas company representative out on an emergency response basis as they normally will immediately dispatch someone if there is a leak. As you allude to it is unsafe for the leak to continue vs. using the emergency shut off that the gas board has access to.
Good luck. Please continue to contribute if there are other things you want to share as a council tenant.
getting an injunction has been mentioned several times now for access for a lGSC – how much does it cost and how long does it take ? thanks
I may be getting a kit done on this topic so watch this space.