As previously reported, there is a consultation on the proposed code of practice which will accompany all licenses when the new registration and licensing regime starts in Wales (suggested October 2015 but as yet not confirmed).
This code of practice is important because it will produce statutory burdens on all landlords and agents who let property in Wales. We have serious concerns over the extent of which new duties are being attempted to be imposed through the code of practice.
Below is our draft reply which will be sent on or before 22 May 2015 (which is the final day). If anybody has any further points to raise, it is important that you reply by using the quick and easy form here. If you have minor suggestions, then please comment below and we will consider them to be added.
This is a reply to the consultation on a private rented sector code of practice for landlords and agents by the Guild of Residential Landlords and Private Rented Sector Accreditation Scheme.
The proposed code of practice seems to be caught between offering guidance on what legislation already exists, requiring additional but similar requirements over and above what legislation already exists and then requiring entirely new obligations.
Although we appreciate the power to introduce a code of practice, it is less clear as to where that power can increase duties over existing legislation.
Take a simple example contained in part 2 (setting up a tenancy) under ‘supplementary documentation’.
Here, the landlord must supply certain documents including a –
’Landlords Gas Safety Certificate, dated within the last 12 months, if the property has any gas appliances’.
This however is not what the gas safety regulations require. Regulation 36 of The Gas Safety (Installation and Use) Regulations 1998 provide that the landlord shall –
(a) ensure that each appliance … is checked for safety within 12 months of being installed and at intervals of not more than 12 months since it was last checked for safety …;
(c) ensure that a record in respect of any appliance or flue so checked is made …
Therefore, if a landlord has installed a new boiler, there is no requirement under the gas safety regulations to obtain a gas safety recorded within the first 12 months. Yet, the code is requiring the landlord to obtain one.
Is this the intention of the code of practice? If so, what is the penalty? Would the landlord be in breach of the licence and therefore committing a criminal offence? Or, is there some financial penalty? (These are important questions because it determines how seriously we need to respond to any parts of a proposed code).
The entire code of practice is littered throughout with these small but significantly important attempts to replicate legislation that already exists but in fact imposes additional duties to what is already legislated.
Another example is under the same requirement to provide documentation, and the landlord must provide a tenant with a –
Fire Risk Assessment, which is compliant with the Regulatory Reform (Fire Safety) Order 2005, if the letting has any common areas and is not a self contained single dwelling.
Section 9 of The Regulatory Reform (Fire Safety) Order 2005 is the requirement to produce a risk assessment but such a risk assessment only needs to be in writing where the landlord employs five or more persons –
(6) As soon as practicable after the assessment is made or reviewed, the responsible person must record the information prescribed by paragraph (7) where—
(a) he employs five or more employees; …
The duty to record also applies where there is a HMO license.
Therefore, is the code now saying under the Housing (Wales) Act 2014 there is a new requirement to produce a written risk assessment in ALL cases? Or, was the paragraph attempting to replicate the legislation? It is further noted that under the fire safety order there is no requirement to provide a copy to the tenant even when done in writing and this would be extremely burdensome. What precisely is the tenant going to do with the information they receive? Will the providing of a fire risk assessment to the tenant be an acceptance by the tenant that it is acceptable and effectively they will have agreed it’s contents?
As a side note on this obligation, I think the wording is wrong because it would exclude self contained flats with a shared staircase which are not excluded by the order.
The vast majority of the proposed code is problematic for the reasons given above and another example which is very typical throughout, under section 3 it is provided –
Basic information must be provided about the tenants to the water supplier within 21 days of change of a new tenancy. This information can be submitted at: www.landlordtap.com (L & A)
Again, is this just guidance or is it a new duty? If it is a further duty to that already legislated what does “basic information” mean? What are the penalties if the landlord fails to provide “basic information” and will that be over and above those contained in The Water Industry (Undertakers Wholly or Mainly in Wales) (Information about Non-owner Occupiers) Regulations 2014? If a landlord complies with those regulations, will the landlord have provided “basic information” in accordance with the code?
We propose that the code should not be set out this way. It is an entirely different situation to the accreditation scheme currently and that code cannot be simply imported. Crucially, the accreditation was entirely voluntary and although a breach of the code can be complained about, it was a contractual agreement between landlord and the accreditation provider so the breach was enforceable that way. The landlord or agent at any time could simply cease to be accredited and any alleged breach under the code would stop from that point and only leave a breach of any legislation (if any).
The licensing is entirely different though. There is no “agreement” by a landlord or agent, nor is there a possibility of choosing alternative licence providers which may have different codes (like the deposit schemes or redress schemes for example).
Therefore, this regime is effectively providing new statutory obligations without the need for full debate (although we accept any code must be put through the Assembly).
In our view, there are no powers under the Housing (Wales) Act 2014 to impose further burdens on landlords other than those specifically set out such as registration and licensing etc. The Act does not allow for new legislation such as obtaining a gas safety record over and above what the existing legislation provides for nor requiring more information to be provided to a water provider for example.
It is therefore respectfully submitted that although the code may seek the landlord complies with all current legislation and to fail may well be a breach, it shouldn’t suggest how to comply with the legislation and should instead provide a “guidance” document as to how to comply – for example as currently done under accreditation by producing the ANUK landlords manual.
The main purpose of licensing is the training element. How to comply with the gas safety regulations (including when a copy must be provided to the tenant) will be covered in that training. The code should just say for example “comply with all legislation” or “comply with the The Gas Safety (Installation and Use) Regulations 1998” and a guidance document also provided.
The code can then go on to require things over and above the legislation but they must not be more onerous than existing legislation. Anything required that would be more onerous must in our view be put through the Assembly as entirely new and separate legislation in some Act or Regulations.
Another good example of the imposition of an entirely new requirement is –
A check on the electrical installation should be carried out at least five yearly intervals by a competent electrician. (L & A)
Legislation only requires such a check in a HMO but not in other lettings. Is this the creation of new legislation by the back door? It is our view the Housing (Wales) Act 2014 does not allow for addition electrical checks to be required over those already legislated for under the The Management of Houses in Multiple Occupation (Wales) Regulations 2006.
To clarify, the Guild or PRS Accreditation Scheme does not object to the principle of all dwellings being subject to five yearly electrical checks. We simply dispute the powers contained within the Housing (Wales) Act to introduce such legislation.
It was fine to ask of this under the accreditation code because then the landlord was “agreeing” to the code. However, there is no agreement to this code and anything contained within will effectively become a statutory duty.
A further problem with the code is the common use of the word ‘should’. Compare this with the use of the word ‘must’ in various paragraphs.
Does this mean that anything with the word ‘should’ is voluntary in certain circumstances? That must be the case when compared to other items which use the word ‘must’.
This makes the whole code extremely difficult to understand what is required and what isn’t and is unclear as to what circumstances will allow a landlord not to comply.
The use of the HHSRS should not be used in the code. A requirement to not have a category 1 hazard for example is simply impossible for a landlord or agent to fully grasp without lengthy training such as that which environmental health officers have received.
The code requires that –
… Category 1 hazards must be rectified and high value Category 2 hazards should also be mitigated wherever possible. (L & A)
But, it is unclear whether this is at all times or only after an inspection and notice or order has been served by the local authority (and if after local authority intervention, the legislation already deals in great detail with how a landlord must comply and penalties for failure). Further, what does “high value” category 2 hazards mean?
To illustrate the problems of using the HHSRS in this way, for example, under the statutory guidance for the HHSRS, it is possible for a Yale type lock in certain situations to be a category 1 hazard because of the way the calculation in relation to likelihood must include the ‘perception’ of an intruder rather than an actual intruder.
Further, if there is a ‘disused’ cellar with concrete steps and floor, no hand rail and little or no light, is that a category 1 or category 2 hazard?
Without extensive training (of which the training for the licence can never reasonably be sufficient), it is simply not reasonable to expect a landlord or agent to fully understand the whole provisions of the HHSRS.
In any event, the Housing Act 2004 is specific that a category 1 hazard ONLY exists AFTER an inspection by a local authority inspector. As a result, until such an inspection has taken place, no category 1 hazard can exist (regardless of the repair or defect before the inspection and regardless of the qualifications or competence of a landlord or agent).
Again, in our view such an onerous requirement should be left for a separate piece of legislation and debated properly (such as the fitness standard currently proposed under the Renting Homes Bill).
Re ‘A check of the electrical installation should be carried..’ This is too vague a sentence and potentially confusing and in particular use of the word ‘check’. In the context of the electrical installation HMO regulations correctly refer to ‘inspected and tested’ which is consistent with guidance from Electrical Safety First (ESF) which refers to this as periodic inspection (sometimes called formal inspection and test or periodic inspection and test) and is carried out by a registered electrician. Use of the word ‘check’ could be confused with what ESF refer to as visual check (sometimes called an interim check or electrical safety check) which can be carried out by an electrician or the landlord or their representative.