Gas safety – recent court rulings
Two recent court possession proceedings have failed due to failures around gas safety. These rulings have raised some interesting questions concerning information required on the gas safety record, the giving of records and when may a new record be required more frequently then annually?
The first case is Blagg v Gharbi. The court had three arguments to consider: 1/ Were the tenants given the initial gas safety record (GSR). 2/ Were following records given during the tenancy? 3/ Did the GSR have all the required information on it?
The court dealt with the 3rd argument first. Regulation 36(3)(c) of the Gas Safety (Installation and Use) Regulations 1998 specifies what information must be included on the GSR. The landlord’s name and address was not the record. It could have been the agent’s instead but that was not there either. It was left blank.
The GSR was therefore not valid, and this invalidated the section 21 notice. This would likely apply to an RHW16 in Wales too.
The court looked at the other arguments which included a claim by the tenant that they had not received all the records during the tenancy. The engineer stated he always left a record in the property and sent a copy to the landlord. So, two opposing statements. The court decided that the landlord had not proven, on the balance of probability, (it was 50:50), that the record was given.
The tenant disputed that they had been given the initial GSR (the one valid at the time they occupied the property). Again, the landlord said that they had given it. This therefore meant another 50:50, so not proven on the balance of probability; there was no evidence it had been given. The landlord’ possession claim failed.
This decision was at County Court and as such is not binding on other courts, but it may be argued as a defence.
There is no real counter to argument 3. Had the landlord retained or ensured they had evidence of giving the records both at the beginning and throughout then the other arguments would not have arisen.
The second case Van-Herpen v Green & Green, was again a County Court decision and so not binding.
On the day the tenancy started there was no boiler in the property. A new boiler was fitted the next day. The engineer issued the Building Regulations Compliance Certificate (ordinarily considered to replace the GSR for up to 12 months from installation) but a copy was not given to the tenant.
Two months later there were issues with the installation and the engineer returned to ensure that the boiler worked correctly. No GSR was produced or given to the tenant. Both the landlord and engineer said that the installation and subsequent check did not need a GSR.
The court decided that both the installation and subsequent check needed a GSR and both should have been given to the tenant. There is also an additional concern that the Building Regulations Compliance Certificate does not contain all the information referred to earlier.
The Judge’s argument is that any ‘check for safety’ requires a GSR which would appear to not only include a check for safety at installation to comply with building regulations but also, in reality, at any time that all but limited work is done.
Back to Regulation 36(3). This time 36(3)(a) which says (paraphrased) each appliance to which the duty extends to be ‘checked for safety’ within 12 months of installation and at intervals of not more than 12 months since the last check.
36(3)(b) (paraphrased) requires the landlord to ensure that each appliance and flue is ‘checked for safety’ within 12 months before the start of the tenancy.
36(3)(c) is the requirement to ensure records of any appliance or flue ‘so checked’ are retained.
The majority of ‘work’ to an appliance is likely to be considered as a ‘check for safety’ and according to this decision will require a GSR each visit. That may be several each year.
There has been no appeal to this decision. It’s not known how an appeal judge would view the case. Gas engineers may be resistant or possibly even charge more if a GSR is produced on each occasion an installation or ‘work’ is carried out. However, if a GSR is provided each time work is done then the landlord cannot be wrong.