Over recent months the housing press has regularly featured articles about gas safety and the 'Gas access Campaign' that is running to try and change the law in this area.
The Gas Safety (Installation and Use) Regulations Act 1998 is an important piece of legislation. Few would disagree that gas safety needs to be taken seriously. Problems with gas pipework and appliances can potentially be deadly, both through the risk of explosion and through the hidden risk of carbon monoxide poisoning. There have been high profile examples of what can happen when things go wrong and the Health and Safety Executive frequently prosecutes landlords who breach their duties.
In theory, the duties on landlords are not particularly onerous. Checking properties with gas on an annual basis should not be difficult and, in the majority of cases, these checks are successfully carried out. The difficulty comes when tenants refuse to allow access. There is currently a disparity in the way non-access is tackled - and it is this disparity that the Gas Access Campaign is highlighting.
At present, housing associations are forced to seek access by obtaining an injunction against tenants who refuse access. If a tenant fails to comply with an order requiring them to provide access, the landlord must then seek to commit the tenant to prison for contempt of Court. This process may have worked relatively successfully historically, but as the pressure on the Court system grows the process has become protracted and costly. Even if associations deal with applications in-house, the process can be costly; the initial application fee, possible additional fees if applications for alternative service need to be made, fees of process servers to assist with service of the papers etc. It is no surprise that some social landlords decide to take self-help measures by forcing access, rather than issuing proceedings. This may be a practical solution, but it opens a landlord up to potential claims from tenants.
Local authorities have traditionally fared a little better as they have relied upon their ability to obtain a warrant from the Magistrates' Court to allow them to obtain entry, pursuant to the Environmental Protection Act 1990. With lower fees and a quicker process, it is easy to see why housing associations feel that they have an unfair burden and why the Gas Access Campaign is seeking a change in legislation to allow housing associations the same powers as local authorities in this area.
The gas supplier has the ability to seek access but, in our experience, landlords do not approach the gas suppliers when faced with non-access.
We have recently leant our support to the Gas Access Campaign. All social housing landlords should have the same powers to ensure that they can comply with their gas safety obligations.
However, we would suggest that the campaign needs to go further and that a wholesale reconsideration of the legislation in this area needs to occur. The EPA 1990 is not designed for use in routine gas servicing cases. Even in the last few months, an article has appeared in the criminal press expressing concern that this process is being abused, that the EPA 1990 provisions are being stretched and that, as the application for a warrant is not a last resort, Magistrates should be examining applications more carefully and should not be afraid to refuse warrants. If Magistrates do take a tougher line, local authorities could find themselves having to rely on the County Court injunction process.
The answer needs to be in the form of specific legislation which all social landlords can utilise and which will allow landlords to quickly obtain judicial authority which will allow them to access properties. Careful thought needs to be given as to how this should best be done, to ensure that vulnerable tenants are protected and that the exercise of such a power is a last resort. What is clear, however, is that if potential future tragedies are to be prevented, the current system does need to be overhauled.