COVID-19 and Housing Associations: common sense must prevail

27 March 2020

You will no doubt have heard or read about the changes being made by the proposed Coronavirus Bill to protect tenants. These changes will apply equally to private tenants and social tenants and therefore Housing Associations must take note.

However, the Bill does not yet make any allowances for landlords to ignore statutory duties owed to their tenants, and this article focuses on two particular areas of concern: Gas Safety and Reactive Repairs.

Gas Safety

The Gas Safety (Installation and Use) Regulations 1998 require landlords to ensure that all gas appliances in their properties are regularly checked and maintained, to ensure their safe and efficient working. Although gas safety checks must take place once in every 12 month period, often overlooked is the flexibility afforded to landlords that allows gas safety checks to actually take place between months 10-12 in any given year (e.g. if the check is due on 1st July, it could actually be carried out any time after 1st May in that year). In doing so, the landlord would not be cutting their gas safety certificate for the previous 12 months short (similar to how car MOTs work).

Housing Associations, now more than ever, should be arranging inspections to take place as soon as possible. This two-month window should allow them to avoid the majority of situations whereby a tenant’s self-isolation will prevent the gas safety check taking place in time. The Gas Safety Register is currently reviewing its own advice on the matter on a daily basis and it is always a possibility that the Government may announce a holiday from Gas Safety Inspections at some point.

Reactive Repairs

One area that cannot be so ‘easily’ prepared for is reactive repairs. Housing Associations must continue to maintain and repair their properties, and tenants will no doubt still be making them aware of any wants of repair. So long as Housing Associations can protect the safety of their employees (i.e. they can be provided with adequate PPE and social-distancing rules can be enforced), these repairs will need to be carried out; particularly those that put the tenant in danger or at risk of injury. However, minor repair works will no doubt be put on the back-burner for the time being.

The position on repairs is yet more complicated for new-build properties that have been recently handed over to a Housing Association. Development Agreements and JCT contracts generally require the developer to provide Housing Associations with a 12 month defects liability period. Housing Associations should be actively engaging with developers now to ensure they are clear what procedures have been put in place due to COVID-19 to cover these repairs. We are aware for instance that some developers are issuing revised temporary defects liability procedures, and although in the strictest sense they may not be contractually permitted to do so, assuming their suggestions are reasonable, there would be little to gain by flat-out refusing to accept the revised terms. Housing Associations who have bought from small developers should also be ready to accept that the developer cannot carry out any repairs for the time being and put in place other means to do so.

Ultimately, common-sense needs to prevail.

Refusal of entry

Of course, the suggestions above all work in theory, but even in the best of times, Housing Associations will be used to tenants refusing them entry to properties for one reason or another. General COVID-19 concerns, self-isolation and social distancing are clearly likely to increase resistance by some tenants. If a Housing Association or its contractor is unable to gain entry to carry out gas safety checks or repairs, it is paramount that accurate records are kept of pre-visit communication, timings of attempted visits etc. These records may be necessary if the Housing Association is called upon by any regulator or court, to show reasonable steps were taken to comply with the law.

If you would like to discuss any of the matters above further, please contact Jonathan Parker or Ian Rattenbury in the Birketts’ Residential Development and Property Litigation Teams.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2020.