Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
As recent decisions have demonstrated, where a breach of a consumer standard has not been met and there is a consequential finding of serious detriment, the HCA will consider the compliance of the registered provider (“RP”) with the Governance standard.
In line with proposed revisions to the Governance and Financial Viability Standard (which are currently under consultation), the Review states that RPs which become aware of a breach of a consumer standard that has resulted (or could result) in serious detriment should communicate this to the HCA in a timely way.
Statistics; The statistics provided in the Review suggest that over the last two years although there have been 509 complaints, 407 did not fall within the HCA remit, 40 escalated to Stage 3 but after further investigations only three of those had published findings of serious detriment. Thus suggesting that RPs may need to review their complaints policies and procedures to ensure they meet the requirements of the Tenant Involvement and Empowerment Standard and also ensure they are more widely publicised to tenants.
The statistics also confirm that the Home Standard continues to be the standard which is the one that is most often referred to the HCA, although there is a notable increase in the number of cases where the Tenant Involvement and Empowerment Standard is relevant either on its own or in addition to other standards.
The serious detriment test
The HCA’s role is limited in relation to the consumer standards to intervening only where failure to meet a consumer standard could lead to risk of serious harm to tenants and/or others (the ‘serious detriment test’). Where an RP has breached a consumer standard, before intervening the HCA must establish that there are reasonable grounds to suspect that:
- the failure has resulted in a serious detriment to the RP’s tenants (or potential tenants); or
- there is a significant risk that if no action is taken by the HCA, the failure will result in a serious detriment to the RP’s tenants (or potential tenants).
This process consists of three stages:
- Stage 1 – an initial review to see whether the matter falls within the HCA’s remit;
- Stage 2 - more detailed consideration as to whether there is an actual or potential breach which has caused, or could cause, serious harm; and
- Stage 3 – a detailed investigation.
The HCA’s response (including any enforcement action) will depend on the specific facts and circumstances.
Findings of serious detriment
The three findings of serious detriment relate to RPs who had not met their obligations under the Gas Safety (Installation and Use) Regulations 1998 to have a registered gas safe engineer carry out annual gas checks.
In each of the three cases, the HCA in deciding whether there had been a breach of the standard took into account how many tenants were affected, for how long and whether the failings were systematic in nature. Having established the breach, the HCA then considered “serious detriment” and in those cases where the landlord had been “taking all reasonable action to gain access (including court action)” it considered that the threshold had not been met.
These cases demonstrate:
- the importance of RPs maintaining fit for purpose gas safety programmes and data systems;
- the need for timely action to gain access;
- the use of legal routes available to ensure that the needs of the individual tenant are balanced against the safety of others nearby;
- the importance of clear policies and procedures in relation to gas safety
- awareness and training.
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