Landlords must take gas safety seriously

Within the last few weeks two newspapers have carried reports of the deaths and serious injury caused to tenants living in flats.

These were attributable...Within the last few weeks two newspapers have carried reports of the deaths and serious injury caused to tenants living in flats.

These were attributable to carbon monoxide poisoning and caused by the apparent failure of their respective landlords to arrange for the annual gas safety check pursuant to their duties under regulation 36 of the Gas Safety (Installation and Use) Regulations 1998, reports Deanna LevineOn 2 February the Hammersmith and Shepherds Bush Gazette (and the other papers in this west London Gazette group of newspapers) described how Hammersmith and Fulham Council, landlords of the two tenants who died, apparently failed to comply with the legal duties imposed upon them under this regulation.

In a frighteningly simple case of what appears to have been local authority mismanagement, the time for the next annual gas safety check passed by without anyone being allocated responsibility within the local authority for ensuring that this was attended to at the correct time following a change of contractors to do this work.On 7 March the Evening Standard carried a report of the prosecution of a private landlord who had purchased a flat and let it to two tenants without arranging for a gas safety check to be carried out prior to their moving in (as he was under a legal duty to do).

Within three weeks one of the tenants died of carbon monoxide poisoning and the other almost died, and although miraculously escaping death, he was seriously injured.The legal structureThe law regulating landlords and others who permit people to live in their property is found in the Gas Safety (Installation and Use) Regulations 1998 (SI 1998 No 2451).

They were made under powers contained in the Health and Safety at Work etc Act 1974 (as amended).

The regulations are to be understood in conjunction with the approved code of practice (ACOP) and guidance issued by the Health and Safety Commission.

Entitled Safety in the installation and use of gas systems and appliances, this Health and Safety Executives publication (L56) provides practical guidance on how the regulations should be applied.The code of practice and guidance have a somewhat curious legal status.

While they are not legislation, they may be used by a landlord who has been prosecuted for breach of the regulations to establish a successful defence if he can show that he adopted the methods and procedures set out in the code or equally acceptable alternatives.Landlords A wide-ranging definition of landlord is contained in regulation 36 (1) of the regulations and explained by way of guidance in paragraph 209 of the code and guidance.

The landlords who must carry out the annual gas safety check include local authorities, housing associations, landlords in the private sector, housing co-operatives and hostel owners, where they have tenants living in their property.

Also included are people who let rooms to tenants in both bedsit accommodation and private houses, as well as those who provide bed and breakfast accommodation.

People or companies who provide rented holiday accommodation are included, as well as those who rent out caravans, cottages, flats, chalets and narrow boats on inland waterways.

Landlords legal dutiesRegulation 36(2) describes the basic legal duty imposed on landlords: Every landlord shall ensure that there is maintained in a safe condition (a) any relevant gas fitting [defined in regulation 36 (1)]; and (b) any flue [defined in regulation 2(1)] which serves any relevant gas fitting, so as to prevent the risk of injury to any person in lawful occupation of relevant premises [defined in regulation 36(1)].Some of the landlords legal duties are:l The landlord may not delegate to the tenant his legal duty for ensuring gas safety.l The landlord may not force entry to the property if the tenant refuses to permit access.l The landlord may only use a CORGI registered gas installer for the gas safety check.l Where premises are partly residential and commercial, certain provisions apply and co-operation is essential to ensure that the gas safety arrangements are covered.l A copy of the gas safety check should be left with the tenant.Managing agents If the landlord has managing agents and it has been agreed that they will arrange for the gas safety check, the agents could themselves be prosecuted independently of the landlord under regulation 36, pursuant to section 36(1) of the 1974 Act.ProsecutionsThrough the 1974 Act, the regulations create criminal offences for non-compliance.

This may lead to prosecution, imprisonment and potentially an unlimited fine if the case is brought in the Crown Court.

Disqualification under the Companies Acts because of a directors mismanagement of its affairs could follow.

Enforcement action by the Health and Safety Executive is a subject on its own.

Suffice it to say that, under section 37 of the 1974 Act, the following persons may be prosecuted: l An individual;l Partners;l A body corporate; l A director, manager, secretary or similar officer of the body corporate.Deanna Levine is a solicitor who has worked in the legal departments of Shell, Mobil and British Gas.

She is currently consultant solicitor to BAC Law, Hammersmith, and is the author of The Lettings Market and Gas Safety, published by Cissanell Promotions