Legal requirements for access

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  • #4644
    Andy F
    Participant

    Hi

    I am wanting to escalate some properties to our legal team where we have failed to gain access on numerous occasions to carry out the inspection and testing of the electrical installations. Apart from the tenant breaking their tenancy agreement what sections of the regulations and Acts are the best to use so that we gain a warrant to gain access to these properties and carry out the tests?

    Any advice would be much appreciated.

    Kind Regards

    #4645
    Ryan Dempsey
    Member

    Hi Andy,

    The rules around access are different for Housing Associations and Local Authorities.

    Housing Associations are limited to their tenancy agreement and have to issue a letter stating their intention to seek possession of the property. This can sometimes take unto 3 months to gain access and you need to ensure your back office is flawless or you’ll struggle to get possession.

    Local Authorities have a number of options but the one that probably works best would be the Environmental Protection Act 1990 Section 79 and 80 Abatement Notices. These sections are specific to statutory nuisances which in laymen terms means the tenant is preventing the Local Authority from carrying out essential maintenance/checks which are used to demonstrate electrical safety. The benefit of this act and sections is that the order is in place forever afterwards. Meaning its easier to gain access in the future.

    As mentioned in the Housing Association comment you would need to ensure that your back office is flawless. Demonstrating you have given the tenant every opportunity means the magistrate will lean more towards you when making a decision.

    A few Local Authorities used Section 54 of the Housing Act but this only really worked on 9 out of 10 tenants. The problem you have with this is that Section 54 only gives the tenant a forceful nudge, if they decide not to let you in you then have to seek possession which is a further delay.

    Hope this helps

    Best regards
    Ryan

    #4646
    Ben Milligan
    Participant

    A Scottish Secure Tenancy Agreement gives the association the right to inspect the property or carry out repairs at reasonable times of the day given 24 hours notice. Within this same clause it states that the association has a right to seek forcible entry if refused and that all reasonable opportunities have been given. Forcible entry to make safe a gas supply is fairly well trodden ground but I have not heard of an association gaining access via the SST to carry out electrical inspection and testing.

    #4647
    Ryan Dempsey
    Member

    Hi Ben, thanks for the info, its really useful to know.

    I think one of the main points of the AESM is to look at things like this to try and mirror Gas access rights for Electrical checks. The question Andy F wrote above is something I am being asked regularly from all corners of the country and because no one seems to have pushed forward with the electrical enforcement we’re all watching from afar. I know at both AESM forums this was an interesting topic that generated a lot of discussion.

    Thanks
    Ryan

    #4654
    Andy F
    Participant

    Hi Both,

    Thanks for your responses.

    Just on the flip side to this. If we fail to gain access to a property that is non-compliant and we have evidence that we have attempted to gain access can we as an authority be prosecuted should an accident or injury occur due to unsafe electrical installations?

    Regards
    Andy

    #4660
    Ryan Dempsey
    Member

    Andy,

    I want to be able to say that if your process and back office is flawless and you can demonstrate you’ve attempted to gain access multiple times to check for deterioration etc. that you would be fine. Unfortunately there are far too many variables that would come into play if an accident did happen.

    For example:

    The HSE will want ALL records for the property. If you’ve had multiple call outs for loss of electricity to the property on repairs but failed to gain access on cyclical servicing. You KNOW there is an issue in the property and therefore have to gain access to fix. if you don’t the finger will be pointed directly at you.

    On the other hand, if you have had no repairs for years and you can’t gain access for cyclical servicing, it would be easier to justify that you were unaware of any faults.

    The key to electrical safety management is to try and find ways to have full visibility of what happens in and around your assets. Not always easy I know but a starting point is to get buy in from all departments.

    Ryan

    #4678
    Andy F
    Participant

    Hi,

    I just thought that it would be useful to share with you a response I received in relation to accessing properties to carry out electrical testing and inspection from our legal team;

    By “Electric Fixed Wire Testing” I assume you mean the production of an Electrical Installation Condition Report.

    with Gas being a legal requirement I feel this is easier
    That is correct. It does make it easier.

    You are correct that the tenancy gives a right of access, using force if required in an emergency. If access is refused the Local Authority can serve a notice seeking possession and take steps to obtain a possession order and/or it can apply to court for an injunction requiring the tenant to give access (which is what it used to do with gas check cases).

    I have also been told that we may be able to use the Environmental Protection Act 1990 Section 79 and 80 Abatement Notices. These sections are specific to statutory nuisances which in laymen terms means the tenant is preventing the Local Authority from carrying out essential maintenance/checks which are used to demonstrate electrical safety. The benefit of this act and sections is that the order is in place forever afterwards.

    If we were to pursue a tenant for no access would the above stand up in court for us and in your opinion would we be able to gain a warrant ? Or do you know of any other way we could obtain a warrant to gain access

    The definition of statutory nuisance is contained in section 79(1) of the Environmental Protection Act 1990, which says:

    79 Statutory nuisances and inspections therefor.
    (1) Subject to subsections (1A) to (6A) below, the following matters constitute “statutory nuisances” for the purposes of this Part, that is to say—
    (a) any premises in such a state as to be prejudicial to health or a nuisance;
    (b) smoke emitted from premises so as to be prejudicial to health or a nuisance;
    (c) fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;
    (d) any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;
    (e) any accumulation or deposit which is prejudicial to health or a nuisance;
    (f) any animal kept in such a place or manner as to be prejudicial to health or a nuisance;
    (fa) any insects emanating from relevant industrial, trade or business premises and being prejudicial to health or a nuisance;
    (fb) artificial light emitted from premises so as to be prejudicial to health or a nuisance;
    (g) noise emitted from premises so as to be prejudicial to health or a nuisance;
    (ga) noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street or in Scotland, road;
    (h) any other matter declared by any enactment to be a statutory nuisance;
    and it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with under section 80 below or sections 80 and 80A below and, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint.

    You will note that there is no mention of electricity or of “safe”/”unsafe”/“safety”. You would need to find an authorised officer (e.g. an Environmental Health Officer) who is prepared to say that the problem falls under (a), (b), (c), (d), (e), (f), (fa), (fb), (g), (ga) or (h).

    I don’t think that the Electrical Installation Condition Report is the kind of thing that would be covered by the Environmental Protection Act 1990. From my quick searches of the Internet it appears that electrical installations degrade over time (of the order of decades) and for residential accommodation the Electrical Installation Condition Report is something that would be scheduled to be done every 5 years or on change of occupancy. It is not something that has an urgent pressing need to be done or that kind that courts would think justified a warrant in the ordinary case.

    #4808
    Paul Simpson
    Participant

    Hello

    A little late to the forum, but at Yorkshire Housing we have gone to court for an injunction a number of times and the judges have never questioned us.

    Personally I don’t believe just having a record of no access suffices, if there was a fire due to an electrical fault and someone died, could you really stand up in court and say “yes we did everything we could to gain access” knowing you had not tried court action.

    Paul

    #4974
    Carl Traynor
    Participant

    Hi

    We’ve had similar issues to everyone else. We recently started mirroring gas and it’s been very successful. We currently only have 2 properties out of 13500 going to court for failed access to carry out an EICR. Where we’ve managed to gain brief access rather than a few hours we’ve taken photos and issued a Visual Condition Report with limited lifespan that’s then followed with an EICR. Further failed access will go legal. We figured a VCR is better than nothing at all although we have only issued two dozen or so, it’s a limited option we use.
    We issue NTI & NSP lettered appointments, these seem to have a big effect. We also stick labels on the front door as well as the usual no access cards. The labels tend to be seen as a nuisance so seem to generate subsequent access, they do come off eventually!
    Engaging with the local housing officer also helps a lot as well as tying the EICR to any other appointments the property may raise, especially any type of emergency.

    It’s not easy.

    #17062
    Richard Hart
    Participant

    we have a problem with after a periodical inspection, it is highlighted for a rewire as old stranded wiring and accessories, also lack of sockets.
    if the tenant says they dont want the mess and refuse access to rewire, how would we enforce this ?
    Thanks,

    #17065
    Ben Milligan
    Participant

    Hi Richard,

    Just out of interest, what part of the UK are you in? If you are in Scotland and the tenant has signed a SST then I would go down the route of quoting 5.12 of the SST. The landlord has a contractural right (not a legal right) to access to the property in order to lay wires, cables etc. In Scotland you might find that an unsafe installation would fall foul of the tolerable standard in the Housing (Scotland) Act and the Scottish Housing Quality Standard. Most of the time it will be a case of liaising with the housing team. If this does not resolve it then seeking eviction through court could be an option.

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