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Gas Safety during the COVID-19 pandemic
Compliance at what expense?
In recent years, the UK have seen an increased emphasis on compliance related activities and health and safety practitioners have actively promoted the importance of compliance regimes to further improve safety. Compliance regimes in the social housing sector are an integral element of good governance within an organisation and subject to regular scrutiny to ensure that we are protecting our tenants/customers. The legal duties identified for landlords in compliance areas are, in the main* quite clear.
*Interpretation of requirements for periodical electrical tests is a continued point of debate with some organisations pushing the agenda for five year frequencies in domestic properties. The frequency of fire risk assessment reviews also is a regular point for debate. Neither are topics for further discussion within this article.
Gas Safety is the area of focus and is quite topical within the housing sector at present. It could be argued that Gas Safety in the sector has been topical for many years and it should be acknowledged that there is a low risk tolerance in gas safety. This is ideal and allows compliance and health and safety teams to refer back to prescript regulatory requirements to protect our tenants/customers. Good gas safety management and compliance with regulatory requirements saves lives – no doubt! There are accessible statistics on the internet including the National Health Service and Health and Safety Executive web sites which notes that there are 50 – 60 accidental carbon monoxide related deaths per annum. A breakdown of the statistics in relation to the number of deaths from social housing, private homeowners or industry related etc has not been accessed as part of this article. This information may be accessible via a freedom of information request however in the current environment of local government departments focusing their efforts on the battle against COVID-19, submitting a request would not be appropriate.
The regulatory requirement within the Gas Safety Installation and Use Regulations for landlords to complete a landlord gas safety record (LGSR) is prescript in timescales and must be completed within a 12-month period (Regulation 36). A further point of regular discussion and debate is whether this duty should also extend wider rather than solely applying to landlords. For example, there is no prescript duty for homeowners to arrange an LGSR on their own property and equally this could save lives. The landlord versus homeowner duties are a separate point for discussion.
In the usual run of the mill Britain with no exceptional circumstances, without question the Gas Safety Installation and Use regulations are there to protect our tenants and customers and hold us to account as landlords. In reality though that is not where are as a nation – we are not in business usual circumstances. The last few weeks and months have tested our resolve as a nation and a state of national emergency identified. We have seen our Prime Minister place our nation into lock down for everyone other than some very prescript circumstances including essential key works and maintaining social distancing.
In this national state of emergency is maintaining compliance with regulation 36 of the Gas Safety Installation and Use Regulations an absolute duty at any cost and regardless of risk? Are the controls applied to manage gas safety risk in normal circumstances reasonably practicable when there is a new and greater risk which is going to affect in excess of 100 thousand people in the UK alone. There have been over 7,000 COVID-19 deaths since the first death in the UK on the 5 March. Our Prime Minister is urging us to stay at home – this leads to the question are LGSR’s an essential requirement in today’s situation? Is continuing with LGSR’s a proportionate risk control? (British Gas don’t think so and have suspended all non-emergency appointments including annual LGSRs). Is the biggest risk exposure we are facing relating to carbon monoxide or spread of the virus?
There is a heavy focus on the Gas Safety Installation and Use Regulations however there are other legislative and regulatory requirements which should equally be considered.
The effectiveness of the Health and Safety at Work Act 1974 allows us to ensure that our risks are managed proportionately. The employers’ duties detailed within section 2 include; providing, so far as is reasonably practicable, places of work which are safe and without risks to health for our employees. A similar duty is also extended to those other than our employees and this is noted within section 3 of the act.
Reasonably practicable in UK law allows us to balance time, cost and effort measured against the benefit received. Completion of a detailed risk assessment would allow an organisation to demonstrate that reasonably proportionate controls are in place to mitigate the risk where an LGSR was outside of the 12-month period.
The information on the Gas Safe website and accompanying statement from the HSE via the Gas Safe prevents organisations’ managing their risks so far as is reasonably practicable, which leads to the original question; Is it compliance at any expense?
Preventing the spread of COVID-19 is one of our biggest challenges and we are at a stage where as landlords we can make the biggest impact (positively or negatively). Maintaining the ongoing program of annual gas servicing would ensure compliance with regulation 36 however this would be at the expense of the Health and Safety at Work Act and the Management of Health and Safety at Work Regulations 1999.
It is believed that rather than prioritising the compliance requirements of regulation 36, that there is greater benefit in focusing on compliance with sections 2 and 3 of the Health and Safety at Work Act, and ensuring so far as is reasonably the safety of our employees and our tenants/customers.
The spread of the virus is rapid and the incubation period is currently unknown. The practical controls in relation to social distancing is not always possible if continuing with the program of LGSRs and therefore heating engineers are being put at increased risk and they could also transfer this risk to other customers.
There is additional statistical supporting information which identifies that there are lower fatalities as a result of carbon monoxide poisoning in the warmer months and this can be accessed via;
Individual assessment of the risk indicates that COVID-19 is a greater risk than the carbon monoxide risk. In the absence of annual LGSR being completed it is possible to mitigate the risk with individual assessments with controls which includes;
- Age of the boiler
- Date of last service
- History of breakdown repairs since installation
- History of findings for the last 3 records of LGSR
- Confirming carbon monoxide detection fitted (if not battery detector delivered)
- Internal or external meter
- Phone call contact with the customer to ensure no heating issues or concerns
- A UDC to be placed on the housing management system advising when a service is overdue.
- Where any emergency repairs are required the heating engineer will carry out a dynamic risk assessment when in attendance and if appropriate complete the LGSR at that point.
Continuing with the ongoing program is not supportive of the prime ministers stay at home approach and it is believed that this will increase the risk to life and health as a result of further spread of COVID-19.
The benefits of the Health and Safety at Work Act and supporting regulatory requirements allows employers to make an assessed and informed judgement in managing risk so far as is reasonably practicable and in a proportionate manner.
It is positive that during this time of national emergency that flexibility has been applied and some regulatory requirements have been reviewed such as relaxing driver hours and extending period for vehicle MOT tests.
To demonstrate collaboration with governance/regulatory requirements and management of health and safety, it is suggested that a relaxation of regulation 36 of Gas Safety Installation and Use Regulations would be appropriate. A six-month extension of regulation 36 maybe an appropriate and manageable solution.
It would be beneficial to allow Social Housing providers to assess the gas management risk and implement controls to protect employees and tenants/customers in the unprecedented times and state of national emergency.
Written by IIRSM member Paul Smith.
All information correct at time of publishing (09.04.20)