No more warrants of entry for annual gas servicing

With special thanks to a client for bringing it to our attention, local authorities have received communication that after a review of the law they should no longer be issuing warrants of entry under schedule 3 of the Environmental Protection Act 1990 (EPA). This is because the only legal purpose for a warrant of entry under Schedule 3 of the EPA is to inspect whether a statutory nuisance exists. If such a nuisance exists, the EPA states that the local authority should then issue an abatement notice. But if the local authority are entering and inspecting a property owned and managed by the same local authority, then they cannot issue an abatement notice on themselves.  Case law clearly confirms that they cannot enforce against themselves. Therefore, use of warrants of entry by local authorities in their capacity of landlord is abusing the purpose of the legislation. 

Our view is that this would also apply for warrants of entry sought under s240 of the Housing Act 2004 to investigate whether a HHSRS hazard exists in order for it to take action under its regulatory powers. 

This obviously puts local authorities in a difficult position as they have suddenly lost their main route for legally forcing entry for annual gas inspections where tenants haven’t provided access. Until now, being able to apply to the Magistrates’ Court for a warrant of entry has been a significant advantage for local authorities in not only its ability to obtain authority to lawfully enter a property by force but also the speed with which the remedy is available compared to county court access injunctions. 

Local authorities are now in the same situation as housing associations whose only routes to enforce access are to either to obtain an injunction order in the county court or to regain possession.  Injunctions are almost always used as the first port of call because they are a more proportionate means of legal enforcement and are quicker than obtaining possession.

However, the issue of whether an injunction order can also permit a landlord to force entry for specified purposes/works remains an uncertain issue and is a current hot topic – please see our recent blogs here and here summarising the case law to date. 

Timescales

The timescales and process for obtaining a county court access injunction are more protracted than the former Magistrates’ Court warrant process and are as follows:

• Landlord’s need to follow any applicable policy and procedure re attempts at access before escalating to legal action.
• Some form of pre-court warning of court action and costs is required – this can come from the landlord or a solicitor though the latter is often taken more seriously by tenants. We offer bespoke services to landlords to assist with provision of immediate and low cost legal warning letters on mass – please contact Rebecca Sembuuze for more information.  
• Application is made to the County Court – the reality is that these aren’t given the same level of priority as an antisocial behaviour injunction so depending on how busy the relevant court is, it can take a few weeks to get to a first hearing. We can assist landlords with provision of precedent document packs to complete and can offer a check and issue service – or we can assist with drafting new claims from scratch and issuing at court. Please contact Rebecca Sembuuze to discuss further.
• Often these applications don’t need to proceed to a hearing as tenants are highly motivated to give access once served with court papers. Once access is obtained, proceedings can be stayed.
• If no access after service, then whether an injunction order is made at the first hearing will depend on the circumstances and whether there is any defence.
• Some judges are prepared to make a terms in a first injunction order that permits forced entry for a narrow purpose, but some are not. Others are willing to make a forced entry order if you come back to court after an injunction order has been made and breached. Again, see our previous blogs referred to above. Even with a term permitting entry by force, landlord cannot use force against a person (as that would be a criminal offence) so a tenant could still prevent entry. 

Landlords also need to be aware that usually an access injunction order needs to be personally served.  Check carefully that the property is not abandoned before pursuing an injunction. If the property is abandoned, follow your abandonment procedure and consider a possession claim. 

If local authority landlords are now concerned about criminal consequences for not completing the gas safety checks every 12 months, please do reach out to us for advice. 

For any landlords considering the use or increase of gas capping as a consequence of non-access for the annual safety check, we strongly advise you take advice first about the risks of doing so. 

Next steps

We appreciate that this is a frustrating development for those local authorities who have been successfully using warrants for some years. If you would like to discuss your next steps and options in light of this development, please get in touch.