Smoke and Carbon Monoxide Alarm (England) Regulations 2015

Baroness Williams of Trafford Excerpts

Monday 7th September 2015 Grand Committee

Moved by

[Baroness Williams of Trafford]

That the Grand Committee do consider the Smoke and Carbon Monoxide Alarm (England) Regulations 2015.

Relevant documents: 1st Report from the Secondary Legislation Scrutiny Committee, 2nd Report from the Joint Committee on Statutory Instruments (Special attention drawn to the instrument)

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Williams of Trafford) (Con)]

These regulations were laid before this House on 16 March 2015. The Energy Act 2013 gives the Secretary of State the power to make regulations requiring landlords of residential premises to install smoke and carbon monoxide alarms. These draft regulations were laid under Section 150 of that Act and Section 250 of the Housing Act 2004.

The draft regulations will require private sector landlords, from 1 October 2015, to have at least one smoke alarm installed on every storey of their rental property which is used as living accommodation, and a carbon monoxide alarm in any room used as living accommodation where solid fuel is used. After that, the landlord must make sure that the alarms are in working order at the start of each new tenancy.

Local authorities will be responsible for enforcing the regulations. An authority will be required to issue a remedial notice to a landlord if it has reasonable grounds to believe that the landlord is in breach. If the landlord fails to comply with the notice, the local housing authority must, if the occupier consents, arrange the necessary action to ensure that the property is compliant. The local housing authority can also levy a civil penalty charge on the landlord of up to £5,000.

The regulations have been brought before this House because the Government want to increase the safety of private sector tenants. Setting a minimum standard for the testing and installation of smoke and carbon monoxide alarms will reduce the risks that tenants face from fire and carbon monoxide poisoning in the home.

Working alarms save lives—in the event of a fire in your home you are at least four times more likely to die if there is no working smoke alarm. Successive Governments and local fire and rescue authorities have made extensive use of non-regulatory approaches to increase the uptake of smoke alarms, including a series of highly effective public campaigns such as Fire Kills and the home fire safety checks. However, private rented sector tenants remain less likely to be protected by a working smoke alarm than any other tenant.

The department has also piloted alternatives to regulative approaches to increase the installation of carbon monoxide alarms. However, there are still high-risk properties without these alarms installed. Carbon monoxide poisoning is a serious and preventable form of poisoning. Each year there are around 40 deaths from accidental carbon monoxide poisoning in England and Wales and in excess of 200 non-fatal cases that require hospitalisation. We estimate that the new regulations will save 26 lives and nearly 700 injuries per year. The majority of landlords act responsibly and protect their tenants with working alarms. However, a minority of private sector landlords have proved resistant to safety advice and recommended best practice. That is why the Government decided that it was necessary to introduce the draft regulations, to protect the tenants of these landlords.

A regulatory approach to the installation of smoke and carbon monoxide alarms was discussed as part of the Government’s discussion paper, Review of Property Conditions in the Private Rented Sector, and the majority of responses were in favour. The regulations aim to increase the safety of tenants by ensuring that they are not subject to death, poisoning or injury by a lack of smoke or carbon monoxide warning alarms.

The Government have funded local fire and rescue authorities to purchase a number of alarms for free distribution to landlords, encouraging all landlords to act responsibly towards their tenants as well as helping them comply with the regulations. Alongside these regulations, the department intends to continue to pursue its non-regulatory solutions in order to boost regular testing and uptake of alarms further across all sectors.

I turn now to the concerns of the Joint Committee on Statutory Instruments. The draft regulations were laid in March, before the Small Business, Enterprise and Employment Act 2015 received Royal Assent. The department, however, acknowledges that, as of 1 July, Ministers are required to include a review provision in secondary legislation that regulates business, or publish a statement of why it is not appropriate to do so. Following this, if the draft regulations are approved by Parliament and made, the department has committed to amending the regulations by adding a review clause at the earliest suitable opportunity.

These regulations prove the Government’s commitment to continue improvement and create a private rented sector that works for us all. I commend the regulations to the Committee.

[Baroness Finlay of Llandaff (CB)]

My Lords, I welcome these regulations, and in speaking to them I do not want to sound too harshly critical, but I fear that the carbon monoxide provisions do not go far enough. As the Minister said, there are on average 40 deaths a year from carbon monoxide poisoning in the home. The figures that I have—and I speak as chair of the All-Party Parliamentary Carbon Monoxide Group—are that more than 4,000 hospitalisations a year are related to carbon monoxide poisoning in one form or another. The problem is that the available figures may seriously underestimate the size of the problem. University College London recently assessed that 6% of the London households it surveyed had a high or very high risk of exposure to carbon monoxide. Public Health England commented in March that,

“the burden of non-fatal accidental CO poisoning in England is higher than the burden from mortality”,

and that,

“the numbers of people admitted to hospital with CO poisoning in England are larger than previously estimated and do not appear to be reducing”.

The cumulative effects of low-level poisoning over time can indeed be lethal and can present as things such as strokes. The All-Party Parliamentary Carbon Monoxide Group, which I co-chair, recommended that,

“the Government should ensure that all coroners’ post mortems routinely test for carboxyhemoglobin … levels”,

to see how many cases are missed. I am grateful to the chief coroner who has had a very useful discussion with myself and others and the Gas Safety Trust, which is now piloting with Public Health England a study to develop a protocol for coroners to test for carbon monoxide at post-mortems so that we get an idea of the size of the problem.

The difficulty with the proposed regulations is that they relate to just over 330,000 private rented homes with solid-fuel-burning appliances, but this would protect only a small number of people—roughly 8.2% of those in private rented accommodation—because there is an equally high risk of carbon monoxide poisoning from other fossil-fuel-burning appliances, not just those that burn solid fuel. The regulations particularly name gas. The data collected from coroners’ reports in the past 19 years show that over 35% of deaths were related to mains gas. The requirement that landlords should install and maintain an audible carbon monoxide alarm in all properties with fuel-burning appliances is laudable; the problem is that it will not protect the remaining 92% of those living in private rented accommodation. Some 4.6 million homes will have other fossil-fuel-burning but not solid-fuel appliances, and are at risk not only from the appliances being badly maintained but from neighbours’ appliances being badly maintained with carbon monoxide leaking through brickwork, through cracks in the walls and cracked flues—and also at risk from some of the cooking practices from some of the families who have come here from abroad, who use tinfoil as a way in which to distribute heat over the top of the gas stove, when therefore the gas does not burn properly but burns to carbon monoxide. In that way, you get very high levels of carbon monoxide at about waist height, which is of course the level of the children’s heads and faces when they are in the kitchen with their mother.

The problem with testing alarms is, of course, that in asking that the alarm is tested every six to 12 months, I and others would like to see the onus on the landlords to test the alarms, and that they be required to do so annually. Can the Minister clarify what “proper working order” means? Does it mean that the sensor is checked and not just the battery? Only last week, a couple in Devon had a narrow escape from death after their alarm failed to register a leak, which was because of a faulty sensor. The problem is that alarms cannot be a substitute for proper installation and maintenance of fossil-fuel-burning appliances across the board.

I also have a concern that social housing is exempt. A Hackney Homes study of over 22,000 local authority homes found almost 5% carbon monoxide instance per thousand households. The study also found 35% of these instances resulted from a defective gas appliance. Therefore, while these regulations are step one, can step two include social landlords and then, after that, include that every home where there is a fossil-fuel-burning appliance, at the time when that appliance is installed, renewed or serviced, must be fitted with a carbon monoxide alarm? It should also be the case that those providing the service are proper registered Gas Safe services, and those selling the appliances should sell the carbon monoxide alarm at cost price, not at the huge mark-up that there is at the moment.

--- Later in debate ---

[Lord Beecham (Lab)]

My Lords, I shall raise a couple of questions on paragraphs 7.8 and 7.9 of the Explanatory Memorandum, which deal with the tenures covered by the regulations. Paragraph 7.8 defines a specified tenancy as,

“a tenancy … lease, sub-lease … of residential premises which grants one or more persons the right to occupy the premises as their only or main residence in return for the payment of rent”.

I find it difficult to understand why that restriction should be imposed. If Members of your Lordships’ House were renting premises in London but lived elsewhere, as many of us do, those premises would apparently be excluded from the provisions of these regulations. I am sure that the noble Baroness will be sensitive to the life expectancy of Members of this House—at least on the government Benches. However, it does strike me as odd that that restriction is imposed.

Furthermore, the schedule excludes other categories of letting arrangements,

“where the accommodation is shared with the landlord or falls outside of the traditional private rented sector”.

Again, I do not see why someone paying rent in a property the rest of which is owner-occupied should be exposed to a risk that would not be the case if he were renting the whole property. Then there is the question of what is meant by a tenancy or letting arrangement falling outside the “traditional private rented sector”. We now have Airbnb and similar organisations providing facilities by which occupiers or owners of property can let, usually for short holiday periods and matters of that kind, with probably quite a significant turnover of people. Again, why should those people be exposed to risk, unless the noble Baroness can confirm that such properties are included? It seems to me that they are not part of what the Explanatory Memorandum describes as “traditional private rented sector” properties.

Paragraph 7.9 says that the Schedule excludes agreements where there is shared accommodation with the landlord or landlord’s family. I briefly referred to that in speaking to paragraph 7.8, but paragraph 7.9 has the explanation:

“This is likely to arise where an owner occupier rents out a room in their own home”.

The justification for that is:

“The Regulations are not targeted at owner occupied accommodation”.

Of course, by definition this is a property that is no longer exclusively owner-occupied accommodation. Given that a profit is presumably being made out of the letting, the regulations should at least be extended to properties of that kind.

I appreciate that we are not in a position to amend these regulations, but a number of points have been made by noble Lords opposite, and at some length and with great force by my noble friend, that require attention. I suggest that the matters I have raised also need to be looked at. Otherwise, we are potentially exposing people—it will be a fair number of people if we take the different categories into account—to continuing risk. That is not in the least desirable.

In so far as owner-occupied properties, shared in the way set out in paragraph 7.9 of the Explanatory Memorandum, might be brought within the provisions of the regulations if subsequently amended or revised, the result is that nobody loses. The owner-occupiers gain and their safety is enhanced. Therefore, it certainly seems worth the Government taking another look at the regulations and coming back with new ones that meet many, if not all, of the points that have been raised in the Committee today.

[Baroness Williams of Trafford]

I thank all noble Lords who have taken part in this debate, which has been quite wide-ranging and informative, certainly to me. I also declare a former interest as the landlord of an HMO property. I say right at the outset that it is good practice for anybody, whether in their own home or in private rented accommodation, or indeed for local authorities, to have carbon monoxide detectors and smoke detectors fitted. As a landlord, I certainly did, and most landlords do so. Here, we are trying to target the small number of landlords in the private sector who do not feel responsible for their tenants.

The noble Baroness, Lady Finlay, made some very interesting points. One was that the regulations do not go far enough, and she wondered whether there are far more deaths than the 40 that we think there are. She asked whether post-mortem testing for it would be the answer. In the context of these regulations, there are probably many things that we could do but this is a very good start in tackling the small number of private landlords who have little regard for their tenants, whether in terms of smoke and carbon monoxide detectors or the general standard of the accommodation. This is what the regulations seek to tackle.

The noble Lord, Lord Hunt, asked me about an amendment. The amendment is a “to review” clause. The regulations will be reviewed in two years’ time, acknowledging that they may need to be looked at again.

The noble Baroness, Lady Finlay, talked about social landlords. They are exempt but generally in the social sector they tend to be far more diligent in providing carbon monoxide and smoke detectors. As I said, it is a small number in the private sector who seem to be the culprits.

The noble Baroness asked me about the regulations for installing carbon monoxide alarms applying only to rooms containing a solid fuel-burning appliance. I acknowledge that other things may lead to carbon monoxide leaks but these appliances are the main culprits in terms of creating carbon monoxide poisoning. Going way back to my O-level days, I remember learning that you could tell when someone had carbon monoxide poisoning because they would go pink. I do not know whether people stay pink at the post-mortem stage but that was a sign that someone had carbon monoxide poisoning. The noble Baroness, Lady Finlay, also asked about gas appliances. Again, she may well be right but I understand that the incidence is extremely low compared with that relating to solid fuel-burning appliances.

As I said earlier, there is a review clause in the regulations and there will be a review in 2017, but it is probably fair to make the point that these regulations have to strike the right balance by protecting tenants but not causing unnecessary burdens for landlords, the vast majority of whom, as I said, are diligent towards their tenants.

The noble Baroness also asked why the regulations require landlords to check the alarms only on the first day of the tenancy. We want to ensure that tenants entering a house or property are protected on day one, but we expect it to be both the landlord and the tenant’s responsibility. I have experience of a smoke alarm going off when the battery was getting low. Unless you deal with the problem, your life will be a misery.

My noble friend Lord Marlesford said that October 2015 was too soon and that there was not to be a grace period. First, any self-respecting landlord will already have installed a smoke alarm and a carbon monoxide alarm. They are available free. They are not complicated devices. The draft regulations were laid back in March. He is absolutely right that the explanatory booklets for landlords and local authorities were published only on 4 September, but they were emailed to key stakeholders.

[Lord Crickhowell]

I am sorry, but I do not know what a key stakeholder is. I do not want to be difficult, but I hope that when she clarifies that matter, she will tell me what detailed consultation has been taking place and about the amendments that I specifically asked about to the various documents.

[Baroness Williams of Trafford]

A key stakeholder is someone who has a stake or interest in the regulation or legislation at hand.

In going forward with the regulations, the Government provided £3.2 million in a one-off grant to help fire and rescue—

[Lord Marlesford]

Before my noble friend leaves that point, I was certainly not regarded as a key stakeholder—there is no reason why I should be—but I received from the CLA only this morning a link for me to be able to download the advisory note issued last Friday. It produced its new view when it received that advisory note last Friday, which makes the idea of bringing it into force with no period of grace obvious nonsense.

[Baroness Williams of Trafford]

I take my noble friend’s point: he is not a key stakeholder and he got it from someone who would be regarded as a key stakeholder. That includes local authorities, groups of landlords and managing agents. It is not long until 1 October, but the draft regulations were laid back in March, so people who have an interest in this—that is, stakeholders—knew that it was coming.

[Lord Hunt of Kings Heath]

When the noble Baroness opened her remarks, she made the point that most responsible landlords do this in any case. Clearly the focus here is essentially on poor landlords who probably have no connection with any of the stakeholder groups—I mean, it is extremely unlikely that they are members of the CLA. Given that we are probably dealing with the kind of landlords who do not have much to do with any such groups, we need a publicity campaign to get it across to them. The criticism here is that guidance three weeks before the start—which poor landlords will never see—plus a press notice which presumably was not covered by the media will simply not do the business. That is the point that the noble Lord is making.

[Baroness Williams of Trafford]

I take the noble Lord’s point that rogue landlords, just like rogue employers or anybody else, are the hardest to reach and the least likely to listen to legislation on their obligations. Certainly the Fire Kills campaign was very effective—I hope—in raising awareness of carbon monoxide, which, as the noble Baroness, Lady Finlay, says, is a silent killer.

[Lord Beecham]

I wonder whether publicity is being aimed at tenants to demand that these regulations be enforced. If it is not, perhaps that is something that should be taken up.

[Baroness Williams of Trafford]

How to Rent may well be updated in terms of giving tenants more advice. More than ever, tenants have better information on how to rent and on their rights under their rental agreements. My tenants were certainly very well informed and I can assure noble Lords that they were well looked after.

My noble friend Lord Marlesford asked about new guidance. We have decided to issue new guidance in the form of explanatory booklets, one for local authorities and one for landlords. We also want to update How to Rent, as I have just said to the noble Lord, Lord Beecham, in time for 1 October 2015. My noble friend Lord Marlesford also asked about decorative fireplaces. A decorative fireplace would be one that was clearly not used for burning; in other words, closed off for the purposes of being able to light a fire.

The noble Lord, Lord Hunt, asked about electrical safety in the private rented sector. I can inform noble Lords that landlords are already under a general duty to ensure that electrical installations are safe and kept in good working order.

The noble Lord, Lord Beecham, asked why tenancies for main homes are included and not for people such as your Lordships, who might spend some of their time in London. That is a fair point. Again, it is a start in terms of addressing problems with landlords. I hope that none of your Lordships have rogue landlords looking after them. The noble Lord also talked about tenancies that have been excluded. Student halls, hostels, refuges, care homes, hospitals and hospices are excluded because they all have their own requirements regarding standards, just as Airbnb is not considered a permanent home. Noble Lords are looking slightly puzzled. The premises that I have just mentioned benefit from existing protections under the Regulatory Reform (Fire Safety) Order 2005. I hope that that helps.

[Lord Beecham]

Does that apply to the use of properties by Airbnb? I take the point about the others, such as care homes and the like. What about the Airbnb ones?

[Baroness Williams of Trafford]

No, it would not include Airbnb, but it would include those other types of premises that I mentioned. I hope that I have answered all the questions. I beg to move.

[Baroness Finlay of Llandaff]

I was waiting until the Minister had gone through the list of all the different types of accommodation. Could she undertake to ensure that, in particular, all universities have the information circulated to them? The university population comprises a large number of students, who go into privately rented accommodation around the UK, which is of very variable quality. In previous years, at the beginning of the autumn term, which we are now approaching, there have been deaths. On a cold night students have turned the heat on. There was a carbon monoxide problem and they died. They were not solid fuel appliances; they were usually gas appliances. However, in the wake of this important move—it is an important move; the Government have accepted that something has to be done—it would be very helpful if universities were asked specifically to alert students to the dangers and make them carbon monoxide-aware. Charities are doing this but they cannot cover the whole area.

[Baroness Williams of Trafford]

The noble Baroness makes a very valid point. In fact, I remember the first day that my son moved into a student house with a boiler in his bedroom and I was terrified that he was going to die in the middle of the night. It is a really good point, which I shall take back.

[Lord Hunt of Kings Heath]

The Minister has not responded to the points that I made about European negotiations on safety standards. Would she care to write to me on those matters?

[Baroness Williams of Trafford]

I will certainly do so. I have just spotted that point and I will certainly write to the noble Lord.

[Lord Marlesford]

Following the very interesting, important and sensible point made by the noble Baroness, Lady Finlay, does the Minister not now realise that the courts or anyone else will not see three weeks as being a reasonable time for these regulations to be put into effect? The guidance states that there is no grace period. If anyone tried to impose a £5,000 penalty on day two, three or four, I would have thought that that would be seen as absurd in judicial review terms. Will she not take away and reconsider the implementation date? I certainly could not agree to the regulations going forward with an implementation date of 1 October. That is obviously nonsense. The Minister herself gave a lot of examples, referring particularly to the very limited number of stakeholders. One would like to know how many stakeholders there are. I very much doubt whether people have had advisory notices. I do not believe that anyone would regard dishing out advice last Friday, three weeks before the regulations come into force, as adequate. It clearly is not. It is bad government and basically bad administration by Whitehall, and I hope that the Minister does not defend it.

[Baroness Williams of Trafford]

My Lords, there are two points here. First, it is imperative to protect tenants from unscrupulous landlords who will not meet their obligations. Secondly, in the theoretical situation set out by my noble friend, if on day two—2 October—a landlord was in breach, that landlord would have 28 days to comply, so the date we are talking about is more like six weeks from now.

[The Deputy Chairman of Committees (Baroness Harris of Richmond) (LD)]

The Question is that this Motion be agreed to. As many as are of that opinion will say “Content”; to the contrary, “Not content”.