New regulations for smoke and carbon monoxide alarms are coming into force on 1 October 2022. The regulations update the Smoke and Carbon Monoxide Alarm (England) Regulations 2015.
The new regulations
The amended regulations apply to all homes rented by private landlords and registered providers of social housing unless they are excluded. Examples of the exclusions are:
- shared accommodation with a landlord or landlord’s family
- long leases
- student halls of residence
- hostels and refuges
- care homes
- hospitals and hospices
- low-cost ownership homes
- other accommodation relating to health care provision
The regulations also apply to unlicensed HMOs.
The regulations require registered providers of social housing to:
- Ensure at least one smoke alarm is equipped on each storey of their properties where there is a room used as living accommodation. This has been a requirement in private rented sector since 2015.
- Ensure a carbon monoxide alarm is equipped in any room used as living accommodation which contains a fixed combustion appliance (excluding gas cookers). A fixed combustion appliance means a fixed apparatus where fuel of any type is burned to generate heat. Typically, these appliances are powered by gas, oil, coal, wood, etc., for example, gas or oil boilers, or log-burning stoves. In the Government’s view, and as stated in their Guidance, a non-functioning purely decorative fireplace would not constitute a fixed combustion appliance.
- Ensure smoke alarms and carbon monoxide alarms are repaired or replaced once informed and found that they are faulty. Landlords will be responsible for repairing or replacing any faulty alarms. This includes a requirement to check each alarm is in working order on the first day of any new tenancy.
The requirements are enforced by local authorities who are expected to also ensure their housing is safe and they will be subject to these legislative requirements.
Non-compliance
Local housing authorities must serve a remedial notice where they have reasonable grounds to believe a landlord has not complied with the regulations. The landlord must comply with the notice within 28 days. If they do not comply (and the notice is not suspended or withdrawn), the local housing authority must arrange for an authorised person to carry out the remedial action specified in the notice (where the occupier consents).
The landlord is entitled to make written representations against the notice within the 28 days and the local housing authority must consider these representations made by the landlord within 28 days.
At this point, the remedial notice is suspended whilst the local housing authority considers the written representations. Landlords are not expected to take remedial action during the period of the remedial notice being suspended.
If a landlord can show that they have taken all reasonable steps to comply with the notice, they will not be in breach. If a landlord is faced with access issues and can demonstrate that they have made several access attempts then it is likely that that will be viewed as having taken all reasonable steps to comply.
The local housing authority must confirm the remedial notice in writing within seven days of the expiry of the original period for making representations (28 days). The remedial notice will be deemed to be withdrawn if the local housing authority fails to inform the relevant landlord within the seven-day period.
There will be regulatory consequences if a registered provider of social housing does not comply in time. The guidance, which can be accessed here states:
“Is there a grace period for installation after the regulations commence?
All landlords (whether social or private) have time between when the amendment regulations became law on 27 June 2022 and when they come into force on 1 October 2022. Landlords must comply with the new requirements from 1 October 2022.
What should landlords do if they are aware that they are not compliant?
If landlords are made aware that they are not compliant with the regulations, they should undertake remedial action to install alarms as soon as practicable. Private registered providers of social housing are expected to self-refer to the Regulator of Social Housing whilst they remain non-compliant on the basis of failing to meet their statutory duties.
The Regulator of Social Housing requires social landlords to ensure that all their homes meet the Decent Homes Standard and continue to maintain their homes to at least this standard. Social landlords are also required to meet all applicable statutory requirements that provide for the health and safety of the occupants in their homes.
If private registered providers of social housing are aware that they are non-compliant with these requirements, or any of the regulatory standards, they are expected to self-refer to the Regulator of Social Housing.”
The penalty
The authority can impose a civil penalty of up to £5,000 per breach on landlords who do not comply with a remedial notice.
If the local housing authority is satisfied that a landlord has breached the duty to comply with the remedial notice, the authority must arrange for remedial action to be taken by an authorised person (where the occupier consents).
The authorised person must give at least 48 hours’ notice of the remedial action to the occupier of the property, and if required must produce evidence of their identity and authority.
Where a local housing authority intends to impose a penalty, it must give a ‘penalty charge notice’. This must set out certain required information including the reasons for the penalty, the amount of the penalty, and that the landlord is required, within the specified period, to pay the penalty charge or request a review.
If a landlord does not agree with a penalty, they can make a request a review. This must be made in writing and within the time period specified in the penalty charge notice (not less than 28 days).
If a local housing authority receives a request for a review, they must consider representations made by the landlord, decide whether to confirm, vary or withdraw the notice, and then serve notice of the decision on the landlord.
Where an authority decides to confirm or vary a penalty charge notice, it must inform the landlord that they can appeal to the First Tier Tribunal. If an appeal is lodged, the penalty charge notice is suspended until the appeal is determined or withdrawn.
Appeals can be made on the grounds that;
- the decision of the local housing authority to vary or confirm the penalty charge notice was based on a factual error or was wrong in law;
- was unreasonable for any other reason, or
- that the amount of the penalty is unreasonable.
Practical issues
Various issues may become apparent such as tenants not allowing access or claiming they did not have an alarm at the commencement of the tenancy. If the tenant does not allow access, a careful record of all attempts should be made. It should also be recorded where the alarms are tested at the outset of any new tenancy after 1 October 2022 to ensure that compliance can be evidenced.
The key advice is to be organised prior to 1 October 2022 and check all owned/managed properties to ensure compliance.
If you do not think that you will be compliant by 1 October 2022 then further advice should be taken as to implications from a regulatory perspective.
Currently these provisions only apply in England. Similar requirements are due to be introduced in Wales when the Renting Homes Wales Act is brought into force in December 2022.
The regulations can be found here: Smoke and Carbon Monoxide Alarm (Amendment) Regulations 2022.
For further information, please contact Kerri Harrison, Lee Russell, or Kathryn Kligerman.
