The new Landlords' EICR requirements. The law says that everything must now be to 18th Edition!

[Mark42]

Many will by now have heard of the new requirements for private landlords, enacted under Statutory Instrument 2020 No. 312, known as ‘The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020.’

All new tenancies, and all existing tenancies from 1 April 2021, must have an EICR, to be renewed at least every five years.

The requirements are covered in only a couple of pages, and are easy to understand. They are clearly intended to prevent rogue landlords persisting with dangerous electrical installations, and are entirely sensible. Penalties for non-compliance are severe.

For anything like this I always disregard hearsay and read the primary legislation. I have discovered what appears to be a major cock-up in the document, or at least a lack of consideration of the problems that will be caused.

From the regulations:

Section 3 (1) A private landlord who grants or intends to grant a specified tenancy must:
(a) ensure that the electrical safety standards are met during any period when the residential premises are occupied under a specified tenancy;

Section 2 … ‘ “electrical safety standards” means the standards for electrical installations in the eighteenth edition of the Wiring Regulations [my emphasis], published by the Institution of Engineering and Technology and the British Standards Institution as BS 7671: 2018’

Bloody hell, it’s insane! I suspect the legal draftsman had little understanding of electrical regulations or the problems this overly-restrictive definition will cause.

In short, for a landlord to comply, ‘electrical safety standards’ must be met, and to meet those standards, the installation must be to 18th edition specs.

The Government has produced guidance which states that existing installations, compliant with previous regulations, and deemed currently safe, do not (sensibly) need to be upgraded.

BUT ‘Guidance’ is just that. Guidance does not change the law. The law is what is written down and enacted by parliament. And what is written down is that only the 18th will do.

All it will take is an arsey tenant, or an unrelated accident happening and lawyers getting involved, for a huge can of worms to be opened. Just having for example a perfectly-sound plastic CU, or non-metallic cable clips in an escape route, would render the landlord non-compliant.

It might even leave the certifying electrician liable. I would expect prosecuting counsel to enquire why said electrician signed off a non-18th installation as satisfactory, knowing that the EICR was being issued for compliance with SI 2020/312.

This is serious. I don’t understand why no one else has said anything – the web is silent on this.

What it means is that perhaps four million rented properties in England will need to be upgraded to 18th Edition by 01 April 2021. How many electricians are there to do all this? How many landlords can afford it? It was clearly never intended to be so bloody stupid, but a draftsman’s incompetence has made it so.

‘Electrical safety standards’ should have been defined as something much more generic, cf. the definition of a ‘qualified person’ as a ‘person competent to undertake the inspection…’ and so on. No mention there of the exact qualifications, experience, or any scheme membership. Only that he or she should know what they are doing. It’s a classic British legal provision, leaving the courts to decide what was reasonable in a particular case, considering all the circumstances.

This will need an amendment to the law to sort out, but does Government have the time?

** For others who enjoy reading this kind of thing , the original legislation is attached. **

 

[Andy78]

An inspection is carried out using the 18th edition as the safety standard.

The 18th details what an inspection should and shouldn't be about.

The installation is deemed safe for continued use. Safety standards have been met.

You're overthinking it.

 

[Lister1987]

@dseselectric did a video on just this thing;

View: https://www.youtube.com/watch?v=N_UN84w8brk


Anything built before 18th Edition of course won't meet 19th Edition standards but may deemed fit for continued use. This is not a stick to beat landlords with to get an 18th Edition board installed, but then we knew that already.

 

[littlespark]

You just do the EICR the way you always have.... it’s none of your business really if the property is going to be let out or not.
You give your customer the condition report.... you advise them what is dangerous/ needs improving or is safe.

It is then up to the customer to have any repairs done that HE decides he wants done.

 

[andyb]

I agree with Andy78 & Littlespark.

To take your example re support of cable in escape routes. Are you saying that if you tested a property designed and installed to the 16th and found a noncompliance you would deem it satisfactory, but if you went next door to an identical situation but that it was designed and installed to the 17th amd 3 that would be unsatisfactory?

As Andy says, you test to the current regs then report.

 

[littlespark]

I understand your question. How would the courts see it if there was a situation?

you are qualified to 18th.... you have inspected and tested the way you’re trained to... you have given your findings to the customer....

that’s all you need to prove

 

[Julie.]

I actually agree with Mark, the legislation is contradictory, it in simple terms states it must be compliant with the 18th edition (just like a new installation), but then implies one can take a sensible approach.

As written therefore anyone applying the normal procedure for periodic testing as outlined in the 18th, whilst they would be perfectly fine for non-tenenacy circumstances, they would be completely undefended for periodics in accordance with the new law.

The only solutions are either something happens, in which case the unfortunate person who carried out the periodic inspection would be dragged through court until the court decided what the "correct" interpretation is, at which point it is clarified under 'case-law' *

Or the schemes actually do their job and obtain clarification ahead of time!

I noticed this some time ago, however as I don't deal with this sort of work it has little consequence for me, it did however cause me to raise it with a solicitor friend of mine, who was very clear, he would absolutely argue the case that as it specifically goes for compliance it needs to be compliant!

After all this is to stop landlords 'getting away with outdated and unmaintained properties '

*Just to be clear on what the "correct" interpretation is under law, recently courts have decided that a spider is an insect NOT an arachnid!

So don't rely on courts following common sense!
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Sorry, forgot to say, in the example given of premature wiring collapse, I actually believe that if the wiring is unsupported this would be a C2 in escape routes, as in the event of a fire it does represent a danger, but C3 elsewhere.

This is the whole idea of C1 & C2 it doesn't matter if any practices were acceptable before, now we have realised the issue, if they represent a danger they represent a danger.

Unlike say the wiring colours which may cause confusion, they don't represent any danger.

 

[andyb]

But as a competent electrician you test and inspect the current reg's, at the moment the 18th. That's always been the case, it makes no difference to the inspector whether the property is to be let or not. It's got nothing to do with the schemes, unless I'm missing something.

 

[Julie.]

But as a competent electrician you test and inspect the current reg's, at the moment the 18th. That's always been the case, it makes no difference to the inspector whether the property is to be let or not. It's got nothing to do with the schemes, unless I'm missing something.

If you follow the 'rules' of the 18th, correct the guidelines for periodic tests say you inspect to the current, and recommend or identify dangers where it departs, but an existing installation doesn't have to be compliant with the current version.

However, the legislation as implemented in the case of tenancies in England, does state that it must be compliant (and therefore not in-line with the usual practice)

It is very likely an oversight and lack of understanding by the mps draughting the legislation, nevertheless if that's what the law states, then it becomes up to the courts to decide what the correct interpretation is.

(Just like any other law, this is what keeps lawyers in business)

If someone asks you to do a normal periodic inspection, basically they are requesting an inspection in line with the 18th (or whatever's current) and not necessarily in line with 'The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020.'

If someone asks you to do a landlord's inspection, they are asking for an inspection in line with 'The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020.'

 

[Vortigern]

The fact is it is a statutory instrument aka "back door law" Any LL is open to judicial review of any "housing authorities" power to exercise the provisions within that instrument. IMHO it does not even qualify as law. Rather like NICEIC likes to regurgitate regs to it's members as if they are the JPEL. No doubt there will be hurried amendments and changes to the instrument.
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I do think the provision for existing tenancies is somewhat of an oversight considering the intentions of this instrument in that such tenancies get a year(ish) before the boom comes down on them. I am sure everyone here who does EICR could think of many reasons to believe that there is a greater urgency for tenants already ensconced to have the same protection having seen the parlous state of a lot of existing LLs installations
I also hold that existing regs re BC and LA that the scheme that requires all the safety certificates being rolled out in areas notorious for rogue LLs is the same as this statutory instrument. I also would suggest that change of tenancy in line with current best practice should also attract the same requirements for testing. Due to the tenant often wrecking the property and damaging electrics. Like the flat I attended where a domestic violence situation, among other things, lead to a baseball bat being taken to all the electrical fittings, utterly smashed to smithereens.

 

[andyb]

If you follow the 'rules' of the 18th, correct the guidelines for periodic tests say you inspect to the current, and recommend or identify dangers where it departs, but an existing installation doesn't have to be compliant with the current version.

However, the legislation as implemented in the case of tenancies in England, does state that it must be compliant (and therefore not in-line with the usual practice)

It is very likely an oversight and lack of understanding by the mps draughting the legislation, nevertheless if that's what the law states, then it becomes up to the courts to decide what the correct interpretation is.

(Just like any other law, this is what keeps lawyers in business)

The point I'm trying to make Julie is that if a homeowner employs me to undertake a PIR it makes no difference to me the reason behind the request. It could be an insurance company request, or the local council for an HMO, or the said new letting law or even just the home owner for peace of mind. In every case the PIR will be the same and the EICR filled out the same.
This is what protects you in law down the line if things go wrong.

 

[Julie.]

If they ask you for a standard pir, then you are OK.

I suspect however they will ask you for a report in accordance with the Electrical Safety Standards in the Private Rented Sector as this is what they must obtain.

In which case you should be inspecting to those standards.

In the past i have carried out inspections to various standards, the easiest mistake to make is to reference the wrong standard!

 

[Vortigern]

mps draughting the legislation

It is not MPs that draught an SI it is the SoS that effectively writes it. That is why it is called "back door law"

 

[Julie.]

It is not MPs that draught an SI it is the SoS that effectively writes it. That is why it is called "back door law"

Yup good point

Still issued in their name, sort of!

 

[andyb]

If they ask you for a standard pir, then you are OK.

I suspect however they will ask you for a report in accordance with the Electrical Safety Standards in the Private Rented Sector as this is what they must obtain.

In which case you should be inspecting to those standards.

In the past i have carried out inspections to various standards, the easiest mistake to make is to reference the wrong standard!

That's my point, I'll only do a standard PIR, the EICR states
'The inspection and testing detailed in this report and accompanying schedules have been carried out in accordance with BS 7671:2018 (IET Wiring Regulations) as amended to 2018.'
Anything else would require a different form and, as you say, with the vagueness of the legislation could lead to problems later.