Access Injunctions – Not just a Gas Safety issue

Annual gas inspections have been the leading safety compliance issue within social housing for over the last 20 years. 

Registered Providers of Social Housing are well versed in their legal enforcement tools when a customer fails to give access for a gas check, and we often issue claims in the County Court for ‘gas access injunctions’.

It isn’t, however, strictly speaking a ‘gas access injunction’, rather a breach of tenancy injunction. The Courts have even been known to list breach of tenancy injunction matters as ‘Gas Injunction’ and they are often referred to this within the industry.

It is important to understand that this legal tool i.e., the ‘Gas Injunction’ is not directly based on the Gas Safety Regulations 1998, rather the tenants breach of tenancy by failing to provide access.

The application and claim for an injunction is on the basis that the tenant has failed to comply with a provision within the tenancy to provide access. The Gas Safety Regulations 1998 are relevant but only in so far as the need for access. It is the failure to allow access that is the cause of action.

This means Registered Providers of Social Housing can utilise the breach of tenancy injunction as a legal tool when access is an issue in other circumstances.

A mentality shift is needed in this area. Social Housing Providers need to be aware of all their legal access tools when a tenant fails to give access, particularly in 2023’s climate with so much emphasis on gaining access to properties for electrical checks, fire stop works and building safety works. Your organisation’s current gas access process could be adapted to assist other teams struggling to get to into properties to do works and or other compliance checks. In any instance, provided the need to gain access is proportionate and doesn’t interfere with a tenant’s right to peaceful enjoyment, then an access injunction can be sought to remedy a tenant failing to allow access.

There does not need to be a specific regulatory requirement either. For example, if we take electrical safety and condition reports, which nearly all social landlords will be carrying out in line with the recommendations of every 3 –5 years. Whilst there is no specific legislation to make this mandatory, it is clearly good practice for a social landlord to carry these out. Therefore, there is a justifiable need to enter the property and utilise the access clause which favours the landlord. The access clause within the tenancy agreement is engaged, and in failing to allow access on reasonable notice, a tenant is in breach of that clause, which can lead to a successful application for an injunction to gain that access. The same can be said for general property inspections, fire safety inspections and repairing requirements.

The key is not to think of the breach of tenancy injunction as simply a ‘gas access injunction’ and to consider these as general breach of tenancy matters for which an access injunction can be brought. The clauses of that injunction will change to meet specific needs, but the principles behind the application will not.

If you’re having trouble gaining access to properties for any reason, feel free to contact our Senior Associate Solicitor and Head of Compliance, Building Safety and Decarbonisation, Andrew Fairman.

Law is correct as of 9th June 2023

Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. You are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon as legal advice. No liability is accepted for any error or omission contained herein.

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