As previously reported, from 1 June 2020, new electrical regulations requiring periodic inspection and testing commenced for almost all rented property in England.
However, there is some confusion when the “first” inspection and test report must be conducted especially in relation to a “new tenancy” which started from 1 June 2020.
Government guidance states that the regulations apply to any new tenancy from 1 July 2020 (although the same guidance has a typing error for existing tenancies saying the regs apply from 1 April 2020 which should say 2021).
The Regulations apply to new tenancies from 1 July 2020 and existing tenancies from 1 April 202[1].
Our view is that this government guidance is correct but there are others who hold a different view so the position is unclear. We entirely accept the regulations could have been drafted much better although it should be said until others queried the wording, we were fairly certain as it seems were MHCLG who produced the guidance.
It should be noted, MHCLG did briefly change the guidance to say that the regulations apply to all new tenancies from 1 June 2020 but then put it back to the one now (at the time of writing).
See for example this article outlining the problem which states:
The regulations came into force on 1 June 2020 and say they apply from 1 July 2020. However, there is some confusion over which tenancies they apply to from 1 July. The regulations however are very clear. Regulations 1 states that the regulations came into force on 1 June 2020 and that they apply to “new specified tenancies” from 1 July. Regulation 2 defines a “new specified tenancy” as a tenancy or licence which is “granted on or after the coming into force of these Regulations”. What this means is that any tenancy which was granted or renewed on or after 1 June 2020 must have an EICR done for it. However, there is a month’s grace (until 1 July 2020) to get that EICR done.
We respectfully disagree that the intention behind the wording is to provide a one month’s grace for tenancies which commenced “on or after” 1 June 2020.
Instead, we still hold the view that the wording means that an inspection and test report is needed for a new tenancy commencing from 1 July 2020 onwards.
The reason we believe this is to take the regulations as a whole and not just parts.
Firstly we agree that the regulations “commence” from 1 June and then “apply” to a new specified tenancy from 1 July 2020 or an “existing specified tenancy” from 1 April 2021.
One requirement on landlords is to “ensure the first inspection and testing is carried out before the tenancy commences in relation to a new specified tenancy”.
If other views stating that the regulations apply to a tenancy commencing from 1 June are correct, this would be impossible because the test could not have been carried out before the tenancy commences if it were allowed to be completed up to 1 July.
In our view, that’s why the regulations were worded the way they were. It was to allow an inspection to start from 1 June so it was ready for any new tenancy which was intended to be granted from 1 July 2020 onwards.
Another duty of a landlord is to:
supply a copy of the most recent report to
- any new tenant of the specified tenancy to which the report relates before that tenant occupies those premises; and
- any prospective tenant within 28 days of receiving a request in writing for it from that prospective tenant.
Similar to our view earlier, if the regulations also required an inspection report for tenancies from 1 June, this too would be impossible to comply with. How can a landlord supply a copy of the report “before occupation” if they moved in on 1 June but we were allowed to get the report up to 1 July?
In our view, the wording makes it clear that the regulations commence from 1 June to allow a landlord to start obtaining the “first” report under the regs from 1 June. But, only in relation to a tenancy which is intended to be or is granted from 1 July 2020 onwards do we have to actually provide the report “before” occupation/commencement or give a copy to a prospective tenant if requested etc.
This makes total sense and in our view is what the regulations are saying.
All of that being said, we can see the problem with the wording and the other views.
A landlord would be well advised, if they have a tenancy which commenced on or after 1 June 2020, to get the report done and give a copy to the tenant before 1 July 2020 so as to avoid this question arising in the future just to play it safe (and let someone else have the argument).
Here are some answers to commonly asked questions about the new standards:
What are electrical safety standards?
The standards for electrical installations in the eighteenth edition of the Wiring Regulations, published by the Institution of Engineering and Technology and the British Standards Institution as BS 7671: 2018
Who carries out the checks?
The regulations call for a qualified person to do the work.
A qualified person must have:
- £2 million or more public liability insurance and £250,000 professional indemnity cover
- Qualifications covering the current wiring regulations
- Qualifications covering the inspection, testing and certification of electrical installations
- Two years’ experience as an electrical inspector and tester
How do I know my tester is qualified?
Check them out on these web sites:
What if a tenant is shielding from coronavirus?
If landlords can show testing was not carried out because a tenant was shielding or in self-isolation, this in itself is not a defence (there are no defences to not having the inspection and test report done) but the local authority may take this into consideration before imposing a fine.
What are the penalties for not testing?
Councils can fine landlords up to £30,000 for not complying with the regulations.
