Guidance for Access

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  • Nancy Esslemont

    Further to the recent legislation regarding EICRs for PRIVATE tenanted properties and the upcoming AESM online discussions regarding 5 yearly inspections for the Social Housing Sector, the issue of Access is once again raised.
    For clarity, below are the official reference points:
    Legal Access and Enforcement
    There is no documented legal route allowing access to domestic tenanted social housing properties to undertake essential electrical inspection and testing safety checks. This is despite the regulated need to ensure the electrical installations within these properties remain safe.

    The recommended approach is to make three documented access attempts, ensuring the tenant is given:
    • adequate notice
    • information about why it is important to allow access (see section 7 – Education on the Dangers of Electrical Installations)
    • a clear explanation of what will happen if access is not permitted on all 3 occasions
    In the event that follow-up work needs to be arranged to remedy C2 work which cannot be completed at the time of the electrical inspection, the process of gaining access would start with the approach outlined in the second letter but would need to be worded differently.

    Failure to allow access after 3 attempts should result in the case being passed to the organisation’s legal department to progress through one of the routes identified below. The following legislation provides justification for
    access where needed.
    • Landlord and Tenant Act 1985
    Requires the electrical installation in a rented property is: “Safe when the tenancy begins and maintained in a safe condition throughout the tenancy,” and is kept “in repair and proper working order.”
    • Housing Act1
    Requires the property to be fit for human habitation.
    • Regulatory Reform Fire Safety Order 2005
    England and Wales
    Requires the landlord to apply appropriate measures to manage the risk of fire, containment and escape routes within nondomestic buildings and Houses of Multiple Occupation.
    • Defective Premises Act 1972
    Section 4 places a ‘duty of care’ on the landlord in relation to any person who might be affected by a defect which would result in personal injury or damage to their property.
    • Electricity at Work Regulations 1989
    Regulation 4.4 requires that any electrical systems which a person comes into contact with or uses at work shall be suitable and maintained in a condition for that use.
    • Housing (Scotland) Act 2006
    Chapter 3 under the tolerable standard states a house meets the tolerable standard if, in the case of a house having a supply of electricity, it complies with the relevant requirements in relation to the electrical installation for the purposes of that supply. A dangerous electrical system would therefore fail both the Tolerable Standard and Annex E of the Scottish Housing Quality Standards.
    • Housing (Scotland) Act 2001
    Schedule 4, Paragraph 4 states that the landlord, or any person authorised by it in writing, may at any reasonable time, on giving 24 hours’ notice in writing to the tenant or occupier, enter the house for the purpose of viewing its state and condition and ensuring it is fit for human habitation.
    • Health and Safety at Work Act 1974
    Section 3 has the effect of requiring a Responsible Person to ensure that its tenants are not exposed to risks to their health and safety. It states that: “It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety. Section 7 states that it is the responsibility of the organisation to take reasonable care for the safety of persons who may be affected by the organisation’s acts or omissions at work.

    Local Authorities Only:
    • Environmental Protection Act 1990
    Section 79 and 80, when used in conjunction with one of the above, states that the tenant is preventing you from carrying out your statutory duty and therefore is “causing statutory nuisance”.
    • Legal Injunction
    Other legal routes to access:
    • Provisions outlined in tenancy agreements
    • Notice of Seeking Possession (NOSP)

    Richard Hart

    Hi Nancy
    This is very useful at the moment, as just drawing up contract for our testing program for a 3 year contract, and I know access is going to be an issue.

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