The Smoke and Carbon Monoxide (England) Regulations
Commencement:
The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 came into force on 1st October 2015 and were amended by the Smoke and Carbon Monoxide Alarm (Amendment) Regulations 2022. The 2022 changes came into force on 1st October 2022.
Scope:
The regulations apply to properties in England and are intended to reduce the risk of injury or death caused by smoke or carbon monoxide in the private rented sector. The Building Regulations 2010 require all new-build properties (built on or after 1st June 1992) to have hard wired smoke alarms installed on at least each storey of the property and the installation of a carbon monoxide alarm in all properties when a solid fuel heating system is first installed. However, there has been no legislation in place requiring the installation of smoke alarms on every storey, for older non licensed properties, or any requirement where the system was installed before 1st October 2010. The smoke and carbon monoxide regulations require landlords in the private rented sector in England to ensure that their rented property, which is occupied, is equipped with a smoke alarm and a carbon monoxide alarm the details of which are set out below.
What alarms are required?:
Where a property is occupied under a tenancy or licence, landlords must ensure that:
- a smoke alarm is installed on each storey of the premises on which there is a room used wholly or partly as living accommodation; and
- a carbon monoxide alarm is installed in any room of the premises which is used wholly or partly as living accommodation and contains a fixed combustion appliance other than a gas cooker (4). Prior to 1st October 2022 a carbon monoxide alarm was only required where the room contained a solid fuel burning combustion appliance.
The regulations do not specify what type of alarms should be fitted or where they should be fitted. Landlords should choose alarms appropriate for their properties. Government guidance advises that alarms should be compliant with British Standards and ‘manufacturer’s instructions should be followed when installing alarms but in general smoke alarms should be fixed to the ceiling in a circulation space i.e. a hall or a landing and carbon monoxide alarms should be positioned at head height either on a wall or shelf approximately 1 to 3 meters away from a potential source of carbon monoxide.’
A room is usually classed as living accommodation if it is used for the purpose of living or where a person spends a significant amount of time. The regulations state that a bathroom or lavatory would be living accommodation.
Who is responsible for checking alarms?:
Landlords are required to carry out checks to ensure that each alarm is in proper working order on the day the tenancy begins if it is a new tenancy (4(1)(b)). The regulations state that ‘a tenancy begins on the day on which under the terms of the tenancy the tenant is entitled to possession under that tenancy.’ (4(3))
From 1st October 2022 a ‘new tenancy’ means a tenancy granted on or after 1st October 2022. Prior to the 2022 regulations it meant a tenancy granted on or after 1st October 2015. A ’new tenancy’ does not include a statutory periodic tenancy which arises on the coming to an end of a fixed term tenancy or where a tenancy comes into being at the end of an earlier tenancy, and the landlord and the tenant are the same as under the earlier tenancy, and the property let is the same or substantially the same as the earlier tenancy (4(4)).
Government guidance advises that testing of the alarms should be straight forward for tenants to do and landlords should provide manufacturer’s instructions for testing the alarms and where alarms are not in working order the tenant should arrange for the batteries to be replaced first. Then, if the alarm is still not working after replacing the batteries, or if the tenant is unable to replace the batteries themselves, the tenant should report this to the landlord. It would be advisable to include a clause within the tenancy agreement to confirm that the tenant is responsible for testing the alarms during the tenancy and to report any faulty alarms to the landlord.
Where the tenant or their nominated representative has reported to the landlord on or after 1st October 2022 that an alarm is not in proper working order the landlord must ensure that the alarm is repaired or replaced (4(1)(c). In order to meet the requirement in 4(1)(c) both the determination as to whether the alarm is in proper working order and any required repair or replacement must be carried out as soon as reasonably practicable (4(3A)).
Houses in Multiple Occupation (HMO):
Under Schedule 4 Housing Act 2004 it is a mandatory condition of an HMO licence that where the house is in England landlords must install smoke alarms on each storey of the house in which there is a room used wholly or partly as living accommodation and to ensure that carbon monoxide alarms are installed in any room used as living accommodation in the house which contains a fixed combustion appliance other than a gas cooker. Such alarms must be kept in proper working order and landlords must supply to the local authority on demand a declaration as to the condition and positioning of such alarms.
Tenancies and Exclusions:
The regulations apply to a tenancy, lease or licence of residential premises in England which:
- grants one or more persons the right to occupy all or part of the premises as their only or main residence;
- provides for the payment of rent; and
- is not an excluded tenancy.
There are seven exclusions to the regulations but the two applicable to residential landlords are accommodation shared with the landlord or the landlord’s family and where the tenancy is a long lease or grants a right of occupation for a term of 7 years or more.
Remedial Notice and Enforcement:
The Local Authority will be responsible for enforcement and can issue the landlord with a remedial notice requiring alarms to be fitted or tested within 28 days if they believe the regulations have not been complied with. If the landlord proves compliance, either by becoming compliant or proving they were already compliant, or have taken reasonable steps to become compliant within 28 days, then the landlord will be exempt from the penalty.
Where a tenant or occupier prevents the landlord from entering the premises to carry out his duties under the remedial notice, the landlord’s failure to bring legal proceedings to secure entry to the premises will not alone mean that all reasonable steps to comply with the duty have not been taken.
Landlords can make written representations against the notice within 28 days from service of the notice resulting in a suspension of the notice whilst the local authority consider the representations. Following this the local authority must write to the landlord to either confirm the remedial notice with or without amendments or to inform the landlord that the remedial notice is withdrawn. Where the notice is confirmed the landlord must comply within 21 days of being informed of the decision.
If the landlord fails to comply with the notice the local authority can issue a fine of up to £5,000. Where a landlord does not agree with the penalty charge notice they can make a request in writing for the local authority to review the matter and then appeal to the First-tier Tribunal.
Sources for Further Information:
- www.legislation.gov.uk – The Building Regulations 2010 and The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 & 2022.
- www.gov.uk – The Smoke and Carbon Monoxide Alarm (England) Regulations 2022 guidance for landlords and tenants
- Devon and Somerset Fire and Rescue Service factsheet on smoke alarms available from www.dsfire.gov.uk
This summary is intended to assist landlords and letting agents to understand the effect of the Regulations. It is not an authoritative interpretation – this is a matter for the courts. For more detail, you should refer to the text of the Regulations themselves.