How To Comply With The Smoke And CO Regulations
The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 apply to England only and will commence from 1 October 2015.
The duties under the regulations discussed below apply to almost all tenancies or licenses in England (new and existing) from 1 October 2015 with a very limited number of exemptions. One exemption is where there are lodgers in a landlords own home. Although licensable HMOs are exempt, every HMO would require some sort of fire alarm system anyway under the Management of HMO regs. In addition, changes are being made to the Housing Act 2004 in respect of conditions in HMO licenses granted in England on or after 1 October 2015 ensuring smoke alarms and CO alarms are fitted.
Installation of smoke alarms
Regulation 4 contains the main requirement for smoke alarms and provides that a landlord must ensure that during any period on or after 1 October 2015 –
a smoke alarm is equipped on each storey of the premises on which there is a room used wholly or partly as living accommodation
When determining a storey or room, a bathroom or lavatory is to be treated as a room used as living accommodation. As a result, a half landing containing a bathroom or toilet alone would be counted as a storey and require a smoke alarm. Where there is a mezzanine floor which is just used for access only, it is likely this will not be counted as a storey 1
There is no definition as to what is a suitable smoke alarm for the purpose of the regulations therefore any type will be sufficient. We would suggest the best ones to fit would be either a mains interlinked with battery backup or a 10 year battery type because in the end they will cost less by needing less maintenance and fewer batteries throughout their life.
Where to fit the alarm is not provided for in the regulations (other than on each storey). As a general rule, the best place to fit a smoke alarm is in a hallway leading to an escape route. In a regular 2 storey house, this would mean installing one on the ground floor and one on the first floor hallway by the stairs.
Installation of CO alarms
Regulation 4(1) further requires that –
a carbon monoxide alarm is equipped in any room of the premises which is used wholly or partly as living accommodation and contains a solid fuel burning combustion appliance
Note that a CO alarm is only required to be fitted in a room where there is a solid fuel burning combustion appliance (i.e. rooms containing an open fire, log burning stove, etc.) According to guidance issued by the Department for Communities and Local Government –
In the Department’s view, a non-functioning purely decorative fireplace would not constitute a solid fuel burning combustion appliance.
Landlords should be sure to check their tenancy agreements and ensure that a tenant is prohibited without prior written consent from using any open fireplace in the property just to be sure (unless a CO detector is fitted in each room with a fireplace).
There is a further obligation to ensure that – (my highlights)
checks are made by or on behalf of the landlord to ensure that each prescribed alarm is in proper working order on the day the tenancy begins if it is a new tenancy.
This applies to both the smoke and CO alarms.
“On the day the tenancy begins” is defined as –
on the day on which, under the terms of the tenancy, the tenant is entitled to possession under that tenancy.
The checking only needs to be done on a new tenancy which means a tenancy granted on or after 1st October 2015, but does not include –
- a tenancy granted in pursuance of an agreement entered into before 1 October 2015;
- a statutory periodic tenancy which arises on the coming to an end of a fixed term shorthold tenancy;
- a renewal tenancy where the landlord, tenant and premises let are the same (or substantially the same) as previously let.
The guidance issued by the DCLG suggests a suitable way of showing the alarms were tested on the start day of the tenancy by making –
provision for the tenant to sign the inventory to record that the required alarms have been tested by the landlord and the tenant is satisfied they are in working order.
Such a requirement is clearly going to be problematic for large student letting agents who may have hundreds of students moving in on a single day!
What “proper working order” means is also not defined. Does this mean simply pressing the test button on the day? But, that doesn’t confirm the alarm is in proper working order particularly on CO detectors – it only checks the sounder is working. On occasion, we test all our smoke alarms with very special smoke spray and then time how long it takes to react. That is how to properly test a smoke alarm but it shouldn’t be done too often that way because the spray can cause damage to the detectors over time if not done properly.
From speaking to several fire alarm specialists including fire officers, the best way to check smoke alarms is as follows:
- always follow the manufacturers instructions first and foremost for testing
- where the alarm is a simple mains interlinked, 10 year battery or cheap 9v battery type, pressing the button on the day the tenancy begins should be sufficient assuming the alarm sounds correctly
- where the system has a panel on the wall (usually in the communal hallway), visually inspect the panel to ensure there are no faults, press the evacuate button to test the system and for added comfort (and if competent) test a manual call point which is on the same zone as the relevant smoke alarms. Smoke spray can be used but only if you are competent in carrying out that type of test and spray shouldn’t be used on every occasion (seek advice). If the sounders do not operate as they should immediately seek advice from a competent fire alarm engineer
- the regulations do not apply to licensable HMOs so the licence conditions should be consulted and the alarm would normally be subject to regular testing and maintenance under the licence in any event.
Although many are quite rightly troubled by the fact that landlords only have two weeks to install smoke and / or CO alarms in all rented property in England by 1 October 2015, it is worthy of pointing out that there is no penalty in the regulations for a failure to do so in the first instance.
The regulations say that where a local authority has reasonable grounds that a breach has occurred, they must then serve a remedial notice requiring the landlord to take remedial action.
Remedial action means action to install, repair or check a prescribed alarm is working.
Regulation 6(1) provides that a landlord must carry out any works specified in the remedial notice within 28 days and it is a failure to comply with the remedial notice which attracts a penalty.
Where a local authority is satisfied, on the balance of probabilities, that a landlord is in breach of the remedial notice, a penalty charge of up to £5,000 as set by the local authority will be payable. A penalty charge notice must be served on the landlord within six weeks after they become aware of the landlords failure to comply with the remedial notice.
A landlord will not be in breach of the notice –
if the landlord can show he, she or it has taken all reasonable steps, other than legal proceedings, to comply with the duty.
This will allow for example the situation where a tenant refuses access to install an alarm.
Where a landlord is in breach of a remedial notice, the local authority must arrange for the remedial action to be taken themselves as long as the occupier gives consent.
If a landlord disagrees with a penalty charge notice, the landlord may seek a “review” of the notice in the first instance which must be considered by the local authority. If the landlord remains dissatisfied after the review, an appeal may be lodged with the First-tier Tribunal. The Tribunal may quash, confirm or vary the penalty charge notice, but may not increase the amount of the penalty charge.
The Department for Communities and Local Government have published some guidance – The Smoke and Carbon Monoxide Alarm (England) Regulations 2015: Q&A booklet for the private rented sector – landlords and tenants which is worthy of a read. Have in mind the government issued guidance concerning tenancy deposit schemes when that commenced which turned out to be wrong in some very important areas. This smoke and CO alarm guidance should not be replied upon too heavily.