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[JohnW2]

Not strictly true. Judges have rules of interpretation which can be employed to prevent a perverse outcome.

I understand that, but it surely relies on their being scope for interpretation? Am I not correct in saying that a judge cannot make a ruling which is inconsistent with what the legislation 'actually says', even if if the judge disagrees with what the legislation says and/or feels that it does not correctly reflect the true intention of the legislators?

The legislation appears to say, without any qualification, that a landlord must obtain a report, provide a copy to the tenant and then have undertaken, within 28 days of the date of the report, any remedial work or further inspection indicated as necessary on the report - and, quite apart from the associated guidance document, what is written on an EICR report makes it explicitly clear that a C2 coding means "Potentially dangerous - urgent remedial action required". Does that leave any scope for 'interpretation' - even if the judge agrees that the report is 'incorrect' in what it is "requiring"?

It would be disproportionally expensive to test though.

Even if one felt that their would be scope for interpretation, it would certainly be disproportionately expensive for the OP. However, if this nonsense continues (as I presume it will, unless something is changed), then one or more of the large commercial landlords might feel that (if they felt they might succeed) that it would be worthwhile to embark on a test case.

The law generally favours reasonable behaviour. There’s plenty of evidence in this thread that the OP is acting reasonably.

Indeed. In fact, I would personally say that he has shown himself to be prepared to go "unreasonably beyond" what one might call "acting reasonably" - in that he at least considered having all the unnecessary work done (at very appreciable cost) just to satisfy a flawed system.

If it were me, I’d probably explain the situation to the tenant/agent and say your hands are tied. I’d then find another electrician to fix the obviously questionable bits and issue a new report.

Indeed. As I've said, if he had had enough time, getting a further report from a reasonable electrician (and having any genuinely required remedial work undertaken) would presumably have solved the problem, since an EICR which pre-dated the 'clean' one (and hence would not reflect the most recent report on the 'condition of the electrical installation') presumably would be of no relevance.

In fact, I'm not sure that, to be pragmatic (rather than strictly in accordance with the legislation), the OP necessarily needs to delay the start of the tenancy. Since the only person(s) to whom the report has to be issued (unless requested by the LA) is the tenant, then if the tenants were happy with the situation, the further EICR (and any genuinely required work) could be undertaken after the tenancy started, and the LA would never have to ever know about the prior EICR (which, in any event, had been 'superseded' by a more recent one - after all, the legislation does preclude having inspections undertaken more frequently than required by the legislation). Not strictly legal, I suppose, but probably broadly consistent with the spirit (or intended spirit) of the legislation.

Kind Regards, John

 

[motorbiking]

I understand that, but it surely relies on their being scope for interpretation? Am I not correct in saying that a judge cannot make a ruling which is inconsistent with what the legislation 'actually says', even if if the judge disagrees with what the legislation says and/or feels that it does not correctly reflect the true intention of the legislators?

No - Judges interpret, superior judges sometimes overrule. Precedents are set in superior courts. A judge can't deviate from a precedent. There have been some very odd interpretation of law. For example the conflict between the right to silence and section 172 of the RTA. Or the unlawfulness of penalties in contracts and the concept of commercial deterrents.

In this case, its not worth the candle.. certainly don't fancy being the one to seek judicial review for a £900 tax deductible bill. A negative review on the internet, may encourage him to reign the BS classifications in a bit.

 

[JohnW2]

No - Judges interpret, superior judges sometimes overrule. Precedents are set in superior courts. A judge can't deviate from a precedent.

Yes, I understand all that. However, is it not true that no judge/Court, even the Supreme Court, cannot deviate from what legislation 'actually says', even if they believe that it 'should have said' something different? In other words, as I recently wrote, a Court (at any level) can only 'interpret' something which is open to interpretation.

Maybe I'm missing something, but I still don't see how legislation which explicitly says "you must get a report and then you must do what it says is required within 28 days" leaves any scope for 'interpretation'.

There have been some very odd interpretation of law. For example the conflict between the right to silence and section 172 of the RTA. Or the unlawfulness of penalties in contracts and the concept of commercial deterrents.

Sure - but, again, such cases are presumably ones in which there is some scope for interpretation (even if the Courts' interpretations are 'odd'!)?

As an aside, I don't know if it relates to the first issue you mention, but I was recently discussing with my (barrister) daughter something one quite often sees in the many 'police documentaries' on TV. Particularly in relation to motorists, it's quite common to see people being cautioned that they "... do not have to say anything ...." followed by a fuss because the police then claim that they are 'obliged' to answer questions about their identity - which appears to be a bit of an inconsistency.

In this case, its not worth the candle.. certainly don't fancy being the one to seek judicial review for a £900 tax deductible bill. A negative review on the internet, may encourage him to reign the BS classifications in a bit.

As I recently wrote, although it's not something one could really 'advise', if it were me I think I would be inclined to go with what I regarded as the 'spirit of the legislation' - by initially 'ignoring' (with the tenants' agreement) the legislation but getting a new, 'clean' EICR within the first week or three of the tenancy. Whatever may be strictly true in legal terms, it's hard to see that any action could sensibly be taken against someone who did this (and who had a 'clean EICR' long before that action could be taken), even if anyone 'found out about it'!

However, something needs to change, since we are faced with legislation which is essentially a "cowboys' charter" - particularly given that a high proportion of landlords will not even realise that they are being 'ripped off'.

Kind Regards, John

 

[morse]

(Sorry for the thread drift)

Yes, I understand all that. However, is it not true that no judge/Court, even the Supreme Court, cannot deviate from what legislation 'actually says', even if they believe that it 'should have said' something different? In other words, as I recently wrote, a Court (at any level) can only 'interpret' something which is open to interpretation.

Maybe I'm missing something, but I still don't see how legislation which explicitly says "you must get a report and then you must do what it says is required within 28 days" leaves any scope for 'interpretation'.
Sure - but, again, such cases are presumably ones in which there is some scope for interpretation (even if the Courts' interpretations are 'odd'!)?

It absolutely is true that they have descretion deviate from the literal interpretation. Parliamentary intention is the basis for one of the rules of interpretation. (see Adler v George [1964] 2 QB 7) It is the job of barristers to exploit interpretation and the job of the judicary to interpret and apply, sometimes walking a very thin line between interpretation and creation of the law.

As an aside, I don't know if it relates to the first issue you mention, but I was recently discussing with my (barrister) daughter something one quite often sees in the many 'police documentaries' on TV. Particularly in relation to motorists, it's quite common to see people being cautioned that they "... do not have to say anything ...." followed by a fuss because the police then claim that they are 'obliged' to answer questions about their identity - which appears to be a bit of an inconsistency.

They cannot _make_ you say anything but you have a statutory obligation to provide certain details. If you choose not to (which of course you can) the court can sanction you for it.

However, something needs to change, since we are faced with legislation which is essentially a "cowboys' charter" - particularly given that a high proportion of landlords will not even realise that they are being 'ripped off'.

Agreed!

 

[JohnW2]

(Sorry for the thread drift)

Indeed, but it's much less dramatic drift than usual, in that it is still broadly related to the issue under discussion (even if not of practical relevance to OP - which is why I keep adding the pragmatic/'if it were me' suggestions!).

It absolutely is true that they have descretion deviate from the literal interpretation. Parliamentary intention is the basis for one of the rules of interpretation. (see Adler v George [1964] 2 QB 7) It is the job of barristers to exploit interpretation and the job of the judicary to interpret and apply, sometimes walking a very thin line between interpretation and creation of the law.

Interesting. There is clearly 'interpretation and interpretation', because I had always assumed that there was no scope for 'interpreting' something which was totally expolicit and unambiguous. All of that, particularly the very last bit of what you say, is fodder for a discussion with my daughter (if/when 'the virus' ever allows me to see her again!), who once wrote a dissertation about "Separation of Powers"

They cannot _make_ you say anything but you have a statutory obligation to provide certain details. If you choose not to (which of course you can) the court can sanction you for it.

'Interpretation', again, I suppose Maybe the caution should start with something like "You do not need to say anything (unless there is a statutory obligation for you to say it) ...." !

Kind Regards, John

 

[denso13]

According to the legislation the EICR should cover the “electrical installation" [which] means fixed electrical cables or fixed electrical equipment located on the consumer’s side of the electricity supply meter.

If something is recorded which is not covered by this definition does that make the whole EICR "void", or just the individual parts which should not be written up. And, therefore, are you under obligation to sort them within 28 days if, as the law says, they shouldn't be mentioned on the form in the first place.

 

[EFLImpudence]

The definition of 'Electrical Installation' in BS7671 is:
"An assembly of associated electrical equipment having co-ordinated characteristics to fulfil specific purposes."

Using your Building Regulation definition, the one to be followed, I would not consider; well, it definitely doesn't mean, for example; a boiler is included in an EICR.

So, at the moment, your guess is as good as anyone else's.


Either the people who write these laws and regulations are not fit for the job or they are ALL written to include 'ambiguous wriggle room' for various scenarios and legal purposes.

 

[JohnW2]

According to the legislation the EICR should cover the “electrical installation" [which] means fixed electrical cables or fixed electrical equipment located on the consumer’s side of the electricity supply meter. .... If something is recorded which is not covered by this definition does that make the whole EICR "void", or just the individual parts which should not be written up. And, therefore, are you under obligation to sort them within 28 days if, as the law says, they shouldn't be mentioned on the form in the first place.

I personally find it hard to believe that is the case.

The legislation says nothing specific about the overall nature of the report - it merely indicates what 'it must cover'. In particular, it does not mention EICRs (which, incidentally, according to BS7671 do include visual inspect of things which are on the supplier's side of the meter - whilst the guidance document associated wit the legislation does explicitly mention EICRs).

Hence, I would think that, even if the report covered other things beyond the “electrical installation" [which] means fixed electrical cables or fixed electrical equipment located on the consumer’s side of the electricity supply meter." (which, as above, an EICR does), it would still be 'valid' in relation to the EICR, but obviously only relevant in terms of items that were required by the legislation. Indeed, it could presumably be a wide-ranging 'report', which covered all sorts of things (gas, plumbing, structure etc.) way beyond anything electrical, but would still be valid in relation to the legislation if it did (amongst other things) cover the “electrical installation" [which] means fixed electrical cables or fixed electrical equipment located on the consumer’s side of the electricity supply meter."

Given the definition of 'electrical installation' they use, I think this would probably let landlords off the hook as regards anything (legitimately, per BS7671) in an EICR which was outside of that definition (i.e. things on supplier's side of the meter) but I can't see why it should 'invalidate' anything else.

Kind Regards, John

 

[denso13]

I personally find it hard to believe that is the case.

Apologies if I am again using incorrect terms, this legislation defines an "electrical installation", https://www.legislation.gov.uk/uksi/2020/312/regulation/3/made and that is what it says. I'm not sure what is hard to believe.

My point being all along that a landlord should ignore a coded "gap between pipes in a ceiling" as i've quoted before, and other silly C2s. You don't need to fix it/them within 28 days under the above legislation and as as a result can't be breaking the law as the law says it shouldn't be there in the first place.

 

[EFLImpudence]

So, could a landlord just ignore other C2s that are wrong?

 

[JohnW2]

Apologies if I am again using incorrect terms, this legislation defines an "electrical installation", https://www.legislation.gov.uk/uksi/2020/312/regulation/3/made and that is what it says. I'm not sure what is hard to believe.

What I find 'hard to believe' is that having things in the report (the nature of which is not defined by legislation) in addition to those required by the legislation (per their definition of 'electrical installation') would/could/should 'invalidate' the report in relation to the legislation.

Let's face it, as I said, any EICR undertaken in accordance with BS7671 will include visual inspection of "EXTERNAL CONDITION OF INTAKE EQUIPMENT (VISUAL INSPECTION ONLY)" (things on the supplier's side of the meter - hence not within the scope of the legislation's definition of 'electrical installation) - but you are surely not suggesting that all such EICRs are 'invalid' (for the purpose of the legislation) for that reason, are you?

My point being all along that a landlord should ignore a coded "gap between pipes in a ceiling" as i've quoted before, and other silly C2s. You don't need to fix it/them within 28 days under the above legislation and as as a result can't be breaking the law as the law says it shouldn't be there in the first place.

I have already agreed that one can ignore anything coded which does not relate to 'the electrical installation' as defined in the legislation, but that argument cannot be used in relation to anything coded which does relate to 'the electrical installation' (as defined), even if one regards the coding as silly.

Kind Regards, John

 

[denso13]

So, could a landlord just ignore other C2s that are wrong?

That's the jist of what I've been asking from day 1 and I don't know. If someone codes a faulty smoke alarm as a C2 can/should you ignore it as far as the landlords legislation goes. I don't know

 

[denso13]

but you are surely not suggesting that all such EICRs are 'invalid' (for the purpose of the legislation) for that reason, are you?

No, I missed out the question mark but think it still reads as a question.

 

[EFLImpudence]

That's the jist of what I've been asking from day 1 and I don't know. If someone codes a faulty smoke alarm as a C2 can/should you ignore it as far as the landlords legislation goes. I don't know

No, I meant something relevant to the report - but just plainly wrong.

 

[denso13]

No, I meant something relevant to the report - but just plainly wrong.

I think if you knew what your were doing and can demonstrate it's wrong then yes.

I'm also aware that many landlords may not know what is right and wrong.