Q1: How will private landlords be made aware of the impact of this instrument before it comes into force? What will the communications campaign (referred to in paragraph 12.12 of the EM consist of?
A1: A familiarisation period for landlords has begun and will continue to the full introduction of the legislation, while the introduction of the regulations before Parliament has already attracted media attention, including from the national press. The communications campaign will consist of:
Q2: What does the definition of ‘private landlord’ cover in these Regulations?
A2: The definition of a Private Landlord is set out in the enabling power (section 122(6) of the Housing & Planning Act 2016) as a landlord who is not within section 80(1) of the Housing Act 1985. This means local authority landlords are not covered by the regulations.
If a private tenant has a right to occupy a property as their only or main residence and pays rent (including both assured shorthold tenancies and licences to occupy but subject to the exclusions below), then the regulations will apply to that tenant’s property.
Further excluded tenancies, set out Schedule 1 of the Regulations, are tenancies where the landlord is a private registered provider of social housing, where accommodation is shared with a landlord or landlord’s family, long-leases of 7 years or more, student halls of residence, hostels and refuges, care homes, hospitals and hospices, and other accommodation relating to healthcare provisions.
Q3: Paragraph 7.3 of the EM states: “If the local housing authority finds that landlords are in breach of their duties in relation to electrical installations, they must serve a notice, which will set out the remedial works required to comply with these duties”. Paragraph 7.4 of the EM states: “If the local housing authority finds that landlords are in breach of their duties in relation to electrical installations, they may impose a financial penalty of up to £30,000.”
Q3(i): Is there a sequence, or could the notice and the financial penalty be served/imposed at the same time?
A3(i): The financial penalty can be imposed for any breach of regulation 3 (ensuring that electrical safety standards are met, ensuring electrical installations are inspected and tested, ensuring further investigative or remedial work is carried out). Before imposing a financial penalty on a private landlord for a breach of their duties, the local housing authority must serve a notice on the private landlord of its intention to do so (a ‘notice of intent’). They must do this within six months of being satisfied that the private landlord is in breach.
A notice of intent is separate to a remedial notice, and the two can be served at the same if the local authority thinks this is appropriate. The normal expectation of sequencing would be that the local authority serves a remedial notice and then makes a decision as to whether to impose a financial penalty.
Q3(ii): How will the level of financial penalty be determined?
A3(ii): Local authorities will determine the level of the financial penalty on a case-by-case basis, taking into account factors such as the level of culpability and the potential for harm. This is in line with other financial penalties for offences in the private rented sector. We will be publishing guidance for local authorities on enforcing the regulations as soon as they come into force.
Q4: Paragraph 7.2 of the EM notes that the Regulations repeal the electrical safety requirements in Regulation 6(3) of the Management of Houses in Multiple Occupation (England) Regulations 2006 and bring HMOs into the scope of the new Electrical Safety Regulations; the EM notes that this will prevent a two-tier system where HMOs and other privately rented properties are required to meet different standards. How did the standards relating to HMOs in Regulation 6(3) of the 2006 Regulations differ to the standards being introduced in these Regulations?
A4: The 2006 Regulations require landlords of HMOs to have the electrical installation of these properties inspected and tested every five years, to obtain a certificate and to supply this to the local authority on request. However, the 2006 Regulations do not require landlords of HMOs to remedy any faults or dangerous conditions that are identified or to share the certificate with their tenants. By repealing Regulation 6(3) of the 2006 Regulations, the new Electrical Safety Regulations will ensure all properties, including HMOs, meet the same electrical safety standards, that dangerous conditions are remedied and that tenants are confident of the safety of the electrical installations in their properties.
Q5: The link to the Government response to consultation in paragraph 10.7 of the EM does not appear to work, please can you confirm whether the link is correct?
Q6: Please can you confirm when the Regulations will apply to new tenancies and when the Regulations will apply to existing tenancies?
Q7: The EM states at paragraph 11.1 that the Ministry will be issuing non-statutory guidance when the Regulations come into force, presumably on 1 July. Why is the guidance not being published now, during the familiarisation period? Without this guidance, how can landlords be expected to fully understand the new requirements and prepare for them?
A7: Regarding the guidance, this will be published when the Regs come into force on 1 June 2020. This means there is a built-in familiarisation period within the Regs so that they do not apply immediately, but they will apply from 1 July 2020 for new tenancies but not until 1 April 2021 for existing tenancies. As we produce draft versions with the guidance we’re also planning on sharing this with stakeholders from the landlord and property agent industry and the electrical safety industry to ensure the guidance is targeted and useful.
Q8: The EM gives a figure of 4.8m private rental sector properties in 2016/17 and states that 22% of landlords have not carried out an electrical safety check in recently let properties. What is the total number of landlords that the 22% refers to?
A8: The figure comes from the English Private Landlord Survey. The EPLS is an online survey of almost 8,000 landlords and agents all of whom are registered with one of the three government-backed Tenancy Deposit Protection (TDP) schemes. In August/September 2017, the TDP administrative data indicated there were just over 3.4 million live deposits registered with a TDP scheme in England, corresponding to an estimated 1.5 million landlords.
20 January 2020 (Answer to Q6 provided on 23 January 2020, answers to Q7 and Q8 provided on 29 January 2020)