Gaining Access

1. Gaining access for gas servicing Avoiding the PitfallsNHMF Maintenance ConferenceHoliday Inn, Stratford upon Avon, 23rd & 24th January 2007

2. Gaining Access Lachlan McLean Paralegal / Trainee Solicitor Forbes Solicitors

3. 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

4. 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

5. Access: Legal Solutions The TWO most usual: • Injunction • Possession

6. 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…”

7. Injunctions • Usually granted • Strict procedure demanded (eg service or substituted service following permission) • Failure to comply: COMMITTAL HEARING…

8. 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

9. Possession • Not cheap • Unpredictable? • Ultimately, sledgehammer solution • Wrong tool for the job? • Tailor it to the tenant!

10. 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)

11. 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 gasesemitted from premises so as to be prejudicial to health or a nuisance;… and, at a pinch: s.79(1)(h) any other matterdeclared by any enactment to be a statutory nuisance… s.79 EPA 1990

12. Statutory Nuisance - Definition “Prejudicial to health”? Defined as: “injurious, or likely to cause injury,to health” s.79(7) EPA 1990

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. EPA Solution- Not just for LA landlords “Where a local authority is satisfied that a statutory nuisance exists or is likelytooccur 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)

20. 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

21. EPA s.82- The “persons aggrieved” approach 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

22. EPA s.82- The “persons aggrieved” approach “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

23. EPA s.82- The “persons aggrieved” approach “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 exceedinglevel 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

24. EPA s.82- The “persons aggrieved” approach “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

25. EPA s.82- The “persons aggrieved” approach • 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 toSchedule Three powers in the same way that s.81 does, it would make sense to employ them.

26. Non-Legal Tips • Raffles? • Text messages? • Publicity. Publicity? Publicity!

27. 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

28. Avoiding the Pitfalls Simon Millington Operations Manager Morgan Lambert

29. 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”

30. 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.

31. 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?!

32. Introduction • Instruct • Wish • Expect

33. 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

34. 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

35. Preventative Measures • Detailed Contract Documentation

36. 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……………………………………………

37. Contract Document / Partnering Agreement • PLEASE MAKE SURE IT IS SIGNED BY BOTH PARTIES!!!

38. Areas of Risk!! • Voids & General Works • Access Issues • Customer’s Own Appliances

39. Voids & General Works • What to Look Out For • Vandalism / Accidental Damage • Unsafe Removal of Appliances • Illegal Installations • Other actions affecting Gas safety

40. Voids & General Works • 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

42. Voids & General Works • 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

43. Voids & General Works • 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”

46. Voids & General Works • 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.

49. Preventative Measures • 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.

50. 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.