Gaining access for gas servicing Avoiding the Pitfalls NHMF Maintenance Conference Holiday Inn, Stratford upon Avon, 23rd & 24th January 2007

Gaining access for gas servicing

Avoiding the Pitfalls

NHMF Maintenance Conference

Holiday Inn, Stratford upon Avon, 23rd & 24th January 2007

Gaining Access

Lachlan McLeanParalegal / Trainee Solicitor

Forbes Solicitors

Access: What not to do

• Drill the locks• Barge in• Use skeleton keys• Pretend you can smell gas and get

Transco to cut off the gas

Why not?

LEGAL repercussions:• Criminal Law Act 1977• Trespass/ Protection from Eviction Act

1977• Human Rights Act 1998 (ECHR Art.8)• Protection from Harassment Act 1997

NON-LEGAL:• Audit Commission• Housing Corporation

Access: Legal Solutions

The TWO most usual:

• Injunction

• Possession

Injunctions

• Mandatory- “to permit entry” and/or “contact Claimant to arrange appointment”

• Pursuant to:– Gas Regulations 1998– Express clause in tenancy agreement– (Also:) s.54 HA 1985 ”…for the purpose of

survey and examination” or s.16 HA 1988 “…for executing …repairs which the landlord is entitled to execute ”

– (Also:) s.11(6) LTA 1985 “…viewing condition and state of repair…”

Injunctions

• Usually granted• Strict procedure demanded (eg service or

substituted service following permission)

• Failure to comply:

COMMITTAL HEARING…

Injunctions

• Favoured over possession by regulatory bodies

• Usually works by frightening tenant into compliance

• Costs always recovered

BUT – Be aware:

• Failure to comply fine or (susp.) prison• Penalty doesn’t include access

Possession

• Not cheap

• Unpredictable?

• Ultimately, sledgehammer solution

• Wrong tool for the job?

• Tailor it to the tenant!

A third way – Statutory Nuisance

“…a summary procedure for the remedy of a

disparate collection of unacceptable states of

affairs, most of which put at risk human health or

harm the amenity of neighbours.

“Summary remedies are provided by local

authorities and magistrates’ courts.

“They are intended to be speedy, cheap and

readily accessible to ordinary people.” McCracken et al, Statutory Nuisance, (Butterworths, 2001)

Statutory Nuisance - Definition

s.79(1)(a) any premises in such a state as to be prejudicial to health or a nuisance;

and possibly also:s.79(1)(c) fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;…

and, at a pinch:s.79(1)(h) any other matter declared by any enactment to be a statutory nuisance…

s.79 EPA 1990

Statutory Nuisance - Definition

“Prejudicial to health”?

Defined as:

“injurious, or likely to cause injury,

to health”s.79(7) EPA 1990

Statutory Nuisance - LA duty to investigate

“…it shall be the DUTY of every local

authority… 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.”s.79(1) EPA 1990

Statutory Nuisance - s.80 Abatement Notice:

• What the statute says“Where a local authority is satisfied that a statutory nuisance

exists or is likely to occur or recur… [it] shall serve [an

abatement notice] imposing all or any of the following

requirements:

(a) requiring the abatement of the nuisance or prohibiting or

restricting its occurrence or recurrence;

(b) requiring the execution of such works, and the taking of

such steps, as may be necessary for any of those purposes;

and the notice shall specify… times within which the

requirements of the notice are to be complied with.”

s.80(1) EPA 1990

Statutory Nuisance

• LA serves notice on Tenant/Occupier

“the abatement notice shall be served…on the person responsible for the nuisance”

s.80(2)(a) EPA 1990

Statutory Nuisance- Abatement Notice

“That [name of tenant] makes arrangements to

permit entry into [exact address of property] by a

CORGI-registered gas engineer and other officers

as deemed necessary by [name of landlord] for

the purposes of undertaking the annual gas

safety inspection and related works as necessary,

as required under the Gas Safety (Installation &

Use) Regulations 1998.”s.79(1) EPA 1990

Magistrates Warrant-Those 5 little words

“If it is shown to the satisfaction of a justice of the

peace on sworn information in writing:– that admission to any premises has been refused, or

that refusal is apprehended, or that the premises are unoccupied or the occupier is temporarily absent, or that the case is one of emergency, or that an application for admission would defeat the object of the entry; and

– that there is reasonable ground for entry into the premises for the purpose for which entry is required “the justice may by warrant under his hand authorise the local authority by any authorised person to enter the premises, if need be by force.”

Paragraph 2(3), Schedule 3, EPA 1990

Magistrates Warrant-Those 5 little words

“…the justice may by warrant under his hand

authorise the local authority by any authorised

person to enter the premises,

…if need be by force.”

Paragraph 2(3), Schedule 3, EPA 1990

EPA Solution- Not just for LA landlords

“Where a local authority is satisfied that a

statutory nuisance exists or is likely to

occur or recur…”s.80(1) EPA 1990

Could be “satisfied” by evidence from ALMO, LSVT, private landlord, etc

May need to negotiate with LA (eg: SLA, protocol, payment for officer time, etc)

EPA s.82- The “persons aggrieved” approach

“A magistrates’ court may act under this

section on a complaint… made by any

person on the ground that he is aggrieved

by the existence of a statutory nuisance”s.82(1) EPA 1990


Complaint must be preceded by “pre-action warning”: a notice of not less than 21 days’ notice served on the person whose nuisance behaviour is complained of.

s.82(6) EPA 1990


“If the magistrates’ court… is satisfied that the

alleged nuisance exists… the court… SHALL make

an order…

(a) requiring the defendant… to abate the

nuisance, within a time specified in the order, and

to execute any works necessary for that purpose

and… may also impose on the defendant a fine

not exceeding level 5…”s.82(2) EPA 1990


“A person who, without reasonable excuse,

contravenes any requirement or prohibition

imposed by an order under subsection (2) above

SHALL BE GUILTY OF AN OFFENCE

and liable on summary conviction to a fine not

exceeding

level 5… together with a further fine of an

amount equal to one-tenth of that level for each

day on which the offence continues after the

conviction.”s.82(8) EPA 1990


“If a person is convicted of an offence under

subsection (8) above, a magistrates' court or the

sheriff MAY, after giving the local authority in

whose area the nuisance has occurred an

opportunity of being heard, direct the authority to

do anything which the person convicted was

required to do by the order to which the

conviction relates.”s.82(11) EPA 1990


• ANALYSIS:

If the person convicted was required to permit

entry, then the authority may be required to

facilitate the same under this provision.

Although the section does not specifically refer to

Schedule Three powers in the same way that s.81

does, it would make sense to employ them.

Non-Legal Tips

• Raffles?

• Text messages?

• Publicity. Publicity? Publicity!

Non-Legal Tips

• Forward planning with: EHOs, social

services, police, etc

• Anticipate vulnerable / disabled /

aggressive tenants

• Magistrates – brief them / the chief clerk in

advance if possible

• Other area landlords

Avoiding the Pitfalls

Simon MillingtonOperations Manager

Morgan Lambert

Introduction

• Gas Safety (Installation & Use) Regulations 1998 as amended

• Regulation 36 Duties of Landlords

• Regulation 39 Exception as to Liability “no person shall be guilty of an offence by reason of contravention……. in any case in which he can show that he took all reasonable steps to prevent that contravention”

Introduction

• Approved Code of Practice & Guidance This code gives practical advice on how to

comply with the law although you may use alternative methods to those shown in the code. However the code has special legal status. If you are prosecuted for a breach of health & safety law you will need to show that you have complied with the law in some other way or a court will find you at fault.

Introduction

• All that is required is to visit every property, carry out the safety check, carry out remedial works and provide on-going maintenance ensuring all work is done safely and on time……

• So; what is the problem?!

Introduction

• Instruct

• Wish

• Expect

Aim & Purpose

• To look beyond the regulations

• To look beyond the requirement to carry out a safety check & maintain appliances in a safe condition

• To look at where things can go wrong or be overlooked

Not all about theGS(I&U) Regulations

• Health & Safety at Work Act 1974• Management of Health & Safety at Work

Regulations 1999• Workplace (Health Safety & Welfare)

Regulations 1992• Construction Design & Management

Regulations • Building Regulations & British Standards

Preventative Measures

• Detailed Contract Documentation

Contract Document / Partnering Agreement

• Whatever form of contract / agreement is used be sure to clearly specify the requirements and what is expected of the service provider.

and……………………………………………

Contract Document / Partnering Agreement

• PLEASE MAKE SURE IT IS SIGNED BY BOTH PARTIES!!!

Areas of Risk!!

• Voids & General Works

• Access Issues

• Customer’s Own Appliances

Voids & General Works

• What to Look Out For– Vandalism / Accidental Damage– Unsafe Removal of Appliances– Illegal Installations– Other actions affecting Gas safety


• Vandalism / Accidental Damage• Damage to existing appliances and pipe work

– The obvious such as fire fronts or appliance casings

– Painted fire casings– The hidden such as behind BBU’s / Air Heaters etc.– Pipe work accidentally or deliberately damaged

causing restriction or weakening of materials– Concealed pipe work suffering similar damage– Damage to flue system especially in the roof

space


• Unsafe Removal of Appliances– Unauthorised disconnection of appliances

can lead to a dangerous situation. Open ended pipe work connected to a gas supply is reportable to the HSE under RIDDOR regulations.

• Reporting of Injuries, Diseases & Dangerous Occurrences Regulations


• Illegal Installations– Installations carried out by Customers

without authorisation or by unskilled persons should be removed immediately

NOTE - Any such appliance if made safe and retained automatically becomes a “Relevant Appliance”


• Other Actions Affecting Gas Safety – Unauthorised modifications can affect gas

safety such as, adding a lean-to or car port too close to a flue, external work on the chimney stack, rendering, pebble dash, allowing vegetation to grow on external walls around flue terminals.


• Inspections– A void check visit by the servicing

contractor to inspect and carry out a Tightness Test is normal practice along with a visit to commission when the property is re-let.

Mutual Exchange

• Mutual exchange raises the same issues as voids in that following exchange there is a new Tenancy Agreement with the same duties. Simply because a new customer has moved into a property occupied up to the point of exchange does not guarantee it is safe.

Management of Health & Safety

• If there was an incident and at no time had you inspected either the work or the documentation received from the contractor, how strong a position do you feel you would be in?

Management of Health & Safety

• Workmanship– Post Inspection of Servicing– Post Inspection of Repair Works

• Documentation– Inspection of LGSR’s (CP12’s)– Inspection of Job Vouchers / Work Sheets– Regulation 26 (9)

No Access / No Gas

• No Access– How many attempts have been made?– Is there a documented record of the visits?– Has a personal visit been made by the

Landlord?– Letters are they read?– Did any other trades visit?– Date of the last safety Check.

No Access / No Gas

• No Gas– Is the meter a pre-payment and out of

credit?– Did the Customer indicate that there is no

intention to use gas?– Is the gas capped and appliances isolated?


• Robust Access Procedures– A robust end-to-end access procedure

producing a well defined audit trail and where necessary utilising the Tenancy Agreement produces a sound basis by which to deal with access issues.

Customer’s Appliances

• Cooker

• Gas Fire / Wall Heater

• Complete Heating System


• Cooker– Is there a stability bracket?– Is the PIC fitted correctly?– Action taken if any defects or omissions are

found?


• Gas Fire / Wall Heater– Is it Open Flue or Balanced Flue?– What is the age and type of flue?– Was permission obtained to install the

appliance and were any requirements included regarding servicing?

– Consider including in service schedule.


• Complete Heating Installations– Is full detail of the specification available?– Are details of the installer available?– It is likely that in time the Landlord will

adopt the system or maybe agree to maintain from the outset?

– Consider including in service schedule.– If not did the permission include

arrangements for the annual service and safety check?


• Control of Installations– State clearly the conditions when granting

customers permission to install their own appliance or system.

– Carry out a risk assessment based on known situations.

– Decide on who will service and maintain the installation.

In Summary

• There are many areas of risk not always immediately apparent.

• The causes are varied and can come from both customers and service providers.

• It is vitally important to ensure as many control mechanisms are in place as practicable to avoid difficulties with legislation and regulatory bodies.

Contact us

Forbes SolicitorsContact: Stuart Penswick. Solicitor, Commercial Litigation Department

Ribchester House, Lancaster Road, Preston, Lancashire, PR1 2QL Tel: 01772 220022 Email: [email protected]

www.forbessolicitors.co.uk

Morgan LambertContact: Steph Patterson, Director of Operations

Head Office Centurion House, Centurion Way, Preston, PR25 3GRTel: 01772 621221

Email: [email protected]

Contact: Vic Lord, Managing DirectorSuite 11, Derwent View, Brackenholme Business Park,

Brackenholme, Selby, North Yorkshire. YO8 6EL Tel: 01757 633255 Fax: 01757 633259

Email: [email protected]

Documents

Gaining access for gas servicing Avoiding the Pitfalls NHMF Maintenance Conference Holiday Inn, Stratford upon Avon, 23rd & 24th January 2007