Safety First - an update on the safety regulations
The Lyttons case
The recent prosecution of letting agent Velma Shallow, proprietor of Lyttons Property Services, Oxford, is the first prosecution under the furniture safety regulations. The case provides us with some interesting details on the various safety regulations. It also gives us an insight into the interpretation and enforcement of the regulations by trading standards officers,
We reported this case in the July issue of Letting Update1.
To recap, Lyttons was investigated by Oxfordshire Trading Standards Department in 1997. As a result, Mrs Shallow was fined £1,625 and was ordered to pay a further £1,400 in costs.
Oxfordshire Trading Standards Officers (TSOs) brought the prosecution after a complaint from four students renting a housing in Bullingdon Road, East Oxford. Officers then entered the property and seized articles of equipment and furniture, including four mattresses which later failed fire-safety tests
Furniture seized
Most of the upholstered furniture in the property was found to be non-compliant and illegal. TSOs seized about a third of the furniture - and the rest was destroyed with the permission of the landlord. Testing of the furniture was carried out by an independent laboratory and found to be non-compliant using standard tests - the match test and cigarette test (i.e by setting fire to it).
Electrical equipment
A fridge was seized and found to be non-compliant. It was wired with a non-compliant plug (i.e. there was no insulation on the live and neutral pins). According to Nigel Smart, the TSO involved in the case, no instructions or warning labels had been supplied with the electrical appliances.
Previous prosecutions
The Lyttons prosecution is first prosecution nationally to be brought under the furniture safety regulations. There has been only one other reported prosecution in relation to the safety regulations generally; where landlord Dr Drummond-Rees was prosecuted for supplying unsafe electrical goods within a holiday letting in Dorset.
When we spoke to TSO Nigel Smart recently, it was understood that further investigations of agents and landlords were taking place in Oxfordshire and his colleagues in other areas were starting to investigate rented property more actively. Inevitably, further prosecutions will follow since so many landlords have still not taken any steps to remove unsafe electrical equipment and replace non-compliant furniture.
Difficulties
Enforcement of the safety regulations by TSOs has not been straightforward for a number of reasons. Like any government agency, Trading Standards departments have tight constraints on manpower and other resources. Accordingly, the prevailing philosophy is to pursue the worst cases, or those offenders which are easier to identify.
The electrical safety regulations have proved easier to enforce for this reason; non-approved plugs and dangerous or frayed wiring is easy to identify. Conversely, furniture has proved to be more difficult. A TSO needs to seize and remove the furniture for testing in order to prove non-compliance. To exercise these powers, they need reasonable grounds to suspect that the furniture is non-compliant; this means entering the property with a technician or similar expert sufficiently competent to give make this identification. Also, TSOs have no powers of entry into property occupied for residential purposes and so they have to rely on being invited in by occupiers. Items seized then will often have to be sent to a laboratory for testing.
This whole process is expensive and time-consuming which probably explains why so few prosecutions have occurred. Many landlords have therefore been fortunate in getting extra leeway and time in order to organise a replacement program for non-compliant furniture but should be warned about complacency; the safety regulations contain the sting of a criminal penalty.
It is only a matter of time before a serious fire takes place in a rented property where non-compliant furniture is found to be present. Whilst we hope that any occupants escape unscathed, it is possible that the landlord or agent responsible for the property might receive less sympathy.
Electrical Regulations
The electrical safety regulations2 have probably caused more confusion than any other part of the safety legislation.Whereas the Gas Safety Regulations are very clear in their requirement for annual inspections, the electrical safety regulations define no specific testing interval, they simply require that any equipment supplied must 'be safe'.3
Competent person
It follows that the only way that the landlord, or person acting for the landlord, can ensure that the electrical goods supplied in a rented property are safe is to have the equipment checked by a person competent to carry out such testing. Again, the electrical safety regulations differ from the gas checks in that the regulations simply infer that a person carrying out the checks must be competent; the regulations do not require that the inspection is carried out by members of any trade organisation such as CORGI.
Safety checks
Whereas the Gas Safety Regulations now specify exactly what checks are to be carried out on gas appliances, the electrical safety regulations are not prescriptive.
However, standard practice in the electrical equipment industry defines a series of standard tests that can be carried out on electrical appliances and circuits in order to check for safety. It is not within the scope of this article to describe these tests in detail - it is the job of the 'competent person' to have this knowledge. The tests are described in a previous issue of Letting Update (Oct 1996). In summary they are:
To carry out these tests requires specialist equipment ; principally a PAT (portable appliance tester) device (which cost in the region of £500 upwards). It is therefore reasonable to assume that some landlords and letting firms could purchase a PAT tester and, with appropriate training carry out the testing in-house.
Whilst gas safety testing requires that a safety certificate is produced following the test, certain information recorded, and a copy of the certificate issued to the tenant, there is no equivalent mandatory requirement for electrical testing. Many firms are, however, issuing certificates and these are still a useful record.
Testing before supply
The legal safety requirements relate to the definition of 'supply' in regard to electrical equipment that is supplied to a tenant as part of any letting, and apply to the person that carries out the supply.
For the purposes of these regulations, the 'supply' only happens once at the beginning of each tenancy; and again, in contrast to the gas safety legislation, there is no ongoing requirement to test during the same tenancy (or any renewal of the same tenancy). But once, a new tenancy is set up, this counts as a new 'supply' under the Regulations.
Regular testing
One simple solution employed by many agents is to put into place annual testing, and this is normally accepted by trading standards officers as sufficient. Because HSE lays down recommended testing intervals for electrical equipment, this type of testing regime would normally also be appropriate for short lettings and holiday lettings where the term of the lettings is less than twelve months.
It is, however, still good practice to carry out a visual inspection of appliances (perhaps in the course of checking the inventory) to check for frayed wiring, non-compliant plugs or obvious damage to an appliance (e.g. damaged casing exposing live components) before each letting.
It follows that where tenants remain in occupation for long periods, there is no statutory requirement for safety testing of electrical appliances during the term of tenancy - a landlord is simply bound by the repairing obligations within the tenancy agreement if the property or contents fall into disrepair.
Landlords therefore have the choice of whether to implement a testing regime prior to each tenancy, or implement a simpler but perhaps more costly blanket annual testing procedure for all properties.
Fixed Wiring
Although fixed wiring and 'anything attached to land' is excluded from the main electrical safety regulations, General Product Safety Regulations 1994 specify that anything supplied within the property must be safe, and therefore the fixed wiring does need to be checked.
The recommended standard testing interval for domestic fixed wiring is every 5-10 years4 although in practice, safety checking subcontractors will usually perform a test on the fixed wiring at the same time as testing the electrical appliance.
Plugs
Plugs and sockets are covered by separate regulations5 but the net effect is that same; the items supplied must be safe and conform to current British or European product standards. For plugs, the current standard is BS1363 (or BS1363A for the more durable rubber-cased plugs); all modern 13 amp plugs sold through retailers have been required to be produced to this standard for several years.
BS1363 requires, amongst other things, that the live and neutral pins are partially insulated to prevent shocks when withdrawing the plug from the socket. The presence or absence of this insulation is easily identified by visual inspection and can, therefore, easily be checked by the landlord or agent. Prior to the introduction of the current BS1363 standard, the metal pins on old-style 13 amp plugs had no insulation. Yet, they may still be marked as conforming to BS1363 since this is also the coding for the older standard - slightly confusing.
In order to be safe, the plug should also be correctly fused. This check would normally be undertaken at the same time as carrying out the other electrical safety tests on an appliance.
It is interesting to note that on both occasions where prosecutions have been brought, the old-style non-compliant plugs were a common factor and easily identified by trading standards officers. Landlords whose rented properties still contain appliances with the older style plugs should have them replaced as soon as possible.
Instruction books
One less well-understood part of the electrical safety regulations is the requirement that, where the safe use of the equipment relies upon the user being aware of any particular characteristic, then suitable information or instruction booklets should be provided.
When explaining the offences in the Lyttons case, TSO Nigel Smart made reference to this issue in relation to the fridge supplied with the house. The fridge was found to be non-compliant on at least two counts:
- it was wired with a non-approved plug (i.e. no insulation on plug pins).
- no instructions or warning labels had been supplied with the appliance.
It is hard to imagine how a simple and innocuous appliance such as the domestic refrigerator could pose a threat to the occupants of a residential dwelling (assuming normal use of course!). When queried on this point, Smart pointed out that the danger could arise if the tenant ever had need to rewire a plug on any of the appliances - instructions should be present on how to wire up the plug, and for the specific appliance concerned, the instructions would explain whether it was an earthed appliance and the importance of having an earthed plug.
We probed further on this point. We asked Smart whether, incredulously, landlords were therefore facing prosecution under the regulations if appliance instructions have become mislaid, through no fault of the landlord. Fortunately, it would appear, common sense would prevail. Smart suggested that his prosecution probably would not have gone ahead on the basis of lack of warning instructions alone - TSOs are looking for more blatant infringements of safety generally; but the landlord might have got a warning. The lack of printed safety instructions was significant to them in this case since it helped add to the general picture of a lack of consumer safety in the rented house.
As a matter of good practice, landlords and agents are therefore advised to ensure that the printed safety information and instructions originally supplied with any appliance are carefully retained, and supplied to tenants before each letting.
Given the predictability of such items being mislaid over time, and the inconvenience and cost of obtaining replacement safety instructions, it would be a sensible precaution for a landlord or agent to retain the original documents and provide copies bound into a folder prepared for each rented property. It is also good practice to ensure the relevant instruction booklets are listed on the supplied inventory. This not only helps to ensure that they are retained at the end of each tenancy, but also provides evidence that they were supplied at the beginning of the tenancy. Such action helps satisfy any future inspection by a TSO that a landlord is showing a positive attitude towards consumer safety and exercising the all-important 'due diligence'.
Furniture
We receive occasional calls from confused agents and landlords. A particular piece of furniture does not have the prescribed safety labels - what should they do ?The answer is normally quite straightforward. Not only do the regulations6 require all such upholstered furniture and other items covered by the regulations (see factsheet) to be compliant to the relevant standards, the regulations also state that such items should be appropriately labelled. So in most cases, unlabelled furniture should be considered to be non-compliant and withdrawn.
There are a few instances where it might be permissible to assume that the labels have been removed or mislaid and continue to supply the furniture. If it can be proved that the item was purchased after 1st March 1990 from a reputable source, then it would be reasonable to assume that the item was compliant (all furniture sold by retailers after this date was required to be compliant). Therefore landlords should be advised to retain all receipts for such purchases.
Alternatively, it might be possible to identify the furniture as either compliant or exempt in other ways. The goods may have a means of identification or labelling which allow its compliance details to be checked with the manufacturer. Bristol-based 'Safety Testing' report that their safety inspectors, who are regularly dealing with furniture testing, can sometimes recognise furniture as compliant (being available from a recognised supplier or identical to other compliant items they have seen before) even though no labels are present. But in many cases, it will be impossible to trace the supplier or source.
Another frequent source of confusion created by the Furniture and Furnishings Regulations relates to mattresses. A loophole in the regulations means that mattresses are not always required to be sold with the prescribed safety labels (e.g. when sold individually without bed bases). A mattress may therefore be compliant - so again it is important to keep receipts.
Most practitioners will be aware that furniture produced prior to 1950 (when synthetic materials were introduced) is exempt from the regulations. Prior to 1950, wool, feather and horsehair were common filling materials, and so their presence would suggest that the particular item of furniture is exempt and does not pose a safety risk.
If in doubt, the safest course is to either take further advice or assume non-compliance. The tests prescribed by the Regulations, the Match Test and Cigarette Test are the only empirical tests available, but are neither useful nor widely employed for obvious reasons - landlords would not look kindly on agents or TSOs who set fire to their furniture !
Smoke detectors
At present, there is still no general requirement for all rented properties to have smoke detectors.
There is however a requirement defined by building regulation for the mandatory fitting of a mains-powered smoke alarms in new residential buildings built since July 19927.
Where smoke detectors/alarms have been installed, either voluntarily by the landlord or as a result of the above building regulations, the landlord will generally be responsible for maintaining the device in a safe working order. The device will need to be checked periodically, both prior to the letting, and also during the letting. In the latter case, it is sensible to instruct the tenant to test any supplied devices according to the interval specified by the manufacturer (typically monthly) and be responsible for replacement of the batteries when necessary.
Oil fired Heating
Although oil and solid fuel boilers pose similar safety dangers to gas appliances, these types of boilers are not covered by the Gas Safety Regulations and are exempt from the requirement to carry out and record the details regarding annual safety checks.Nevertheless, landlords should have such appliances regularly serviced and checked since they come under the General Product Safety Regulations, and the requirement that any item supplied as part of the letting shall be safe. Although these regulations do not prescribe a testing interval, the testing requirement is similar in practice. A landlord would be expected to follow the manufacturer's recommendations which commonly require an annual service.
References
1. LUJ July 1998, page 26
2. Low Voltage Electrical Equipment Regulations 1989 & Electrical Equipment (Safety) Regulations 1994.
3. Reg. 5, Electrical Equipment (Safety) Regulations 1994.
4. IEE maintenance guidance (see below).
5. Plugs and Sockets etc. (Safety) Regulations 1994.
6. Furniture and Furnishings (Fire) (Safety) Regulations 1988 & 1989.
7. Building Regulations 1991