Health and safety in school accommodation

In our previous article on Staff accommodation and the Renters’ Rights Bill, we examined implications of the Renters’ Rights Bill for schools that own staff accommodation or let residential property. Here, we look at another, more practical side of letting property: the law concerning the state and condition of the properties themselves. 

There is already a plethora of relevant law – some familiar and some less so – but here too, the Government (via the Bill) wants to sharpen the focus on providing “safer, better value homes and remove the blight of poor-quality homes in local communities”.

Gas, electricity, smoke alarms

Schools should already be familiar with their duties as landlords concerning electrical and gas safety, as well as smoke and carbon monoxide detectors. These each have a dedicated set of regulations, which set out the respective duties on landlords (such as frequency of testing) clearly. In the case of gas regulations, breach of the regulations is a criminal offence which could result in imprisonment, and/or an unlimited fine. It will also prevent a landlord from serving a valid section 21 notice. In the case of the electrical safety standard regulations and the smoke and carbon monoxide alarm regulations, there are fines for non-compliance and local housing authorities can require remedial action, but section 21 is unaffected. 

What can be less clear is when each of these apply: gas regulations apply to all licences and leases of less than seven years, where there is consideration of money or money’s worth (which can include accepting a reduced salary in lieu of rent) meaning that service occupancy agreements are likely to be caught. The electrical safety and smoke alarm regulations, however, only apply where a rent is charged (whether or not it is a market rent); again, both tenancies and licences are caught. Needless to say that where in doubt, landlords would be well-advised to comply.

Energy performance

Energy Performance Certificates (EPCs) and Minimum Energy Efficiency Standards (MEES) should be straightforward but can be problematic: EPCs are required when a property is "let", but that is not further defined. Because a true service occupancy agreement is a licence, it should not be caught. If the strict service occupancy agreement test is failed and the occupation is instead a tenancy, however, then that may pull it back within the requirement to have an EPC.

In terms of MEES, it is illegal for landlords to let properties which are substandard (namely, those which hold an EPC rating of less than E, which is likely to rise to C by 2030) unless they have registered a valid exemption. MEES only applies, however, where an EPC is required and where the property is let on a relevant tenancy type. Assured and assured shorthold tenancies are caught, as one would expect, but occupations falling outside the statutory codes are not. Careful thought should therefore be given, on a case-by-case basis, as to whether EPCs are required, and whether MEES will apply. 

Housing standards

Schools (landlords in general, in fact) may be less familiar with the legal framework surrounding housing standards. The Housing Act 2004 creates a system for assessing hazards that may be present in dwellings and gives local authorities powers to enforce against landlords, where hazards are present, and present an actual risk. It does this by introducing the "Housing Health and Safety Rating System" (HHSRS) which identifies 29 hazards and instructs authorities how to assess those hazards, either as a serious (category 1) hazard, or a less serious (category 2) hazard. The hazards include matters such as damp and mould, provision for domestic hygiene, overcrowding, and protection from accidents. Where either the occupier reports a hazard, or the local authority inspects and finds one which presents a danger, local authorities are empowered to notify landlords and compel them to remedy the matter using a sliding scale of notices, orders and ultimately demolition orders in the worst cases. 

The Homes Fitness for Human Habitation Act 2018 builds on this framework by implying a new term into all tenancies for seven years or less that the property must be fit for habitation at the start of tenancy and must remain so throughout the term. Again, true service occupancy agreements (licences) are not caught, but where rooms are let in a hostel, and the occupier has a sufficient degree of exclusive possession (usually of their bedroom), a tenancy will be inferred and the arrangement will be caught.

Special cases

There are some housing issues (all of which are hazards under the HHSRS) which, although relatively rare, cause serious problems when they do crop up – not least as they have a habit of attracting negative publicity.

• Asbestos – the regulations which put a duty on landlords to manage asbestos only apply to non-domestic property, but the definition of non-domestic property is widely drawn and will catch common areas of shared accommodation, such as stairwells and entrance halls. Schools using hostels to accommodate staff, therefore, are likely to come within the scope and will need to comply with the regulations (broadly, identify any asbestos, devise a plan for managing it and keep that plan under review).
• Legionnaires disease – legionella bacteria are widely found in maintained water systems inside property, especially those where supplies are inactive for periods of time, such as outside term-time. The Health and Safety Executive publish guidance which advises that "those in control of premises", have a legal duty to ensure that the risk posed by legionella bacteria is properly assessed and controlled.
• Radon – this is only a problem in some, fairly limited parts of the country, such as the south-west. Where suspected, UK Radon advises checking local levels using their interactive map and if necessary, applying for a measuring kit. Where the test results show radon levels above the action level (200 Bq m^-3), measures should be taken to reduce it.

The future

Under the Renters’ Rights Bill, two additional requirements are envisaged; the first is extending Awaab’s Law to the whole of the private rented sector. Awaab’s Law aims to close the perceived loophole that although landlords are required to make repairs once they are aware of a hazard, there is no statutory timeframe within which they must do so. When in force, landlords will have to meet prescribed timeframes for dealing with hazards; Angela Rayner announced on 6 February that this will be rolled out for social housing sector in a phased approach, starting with damp and mould, but will eventually apply to all of the 29 hazards in the HHSRS (apart from overcrowding).

The second requirement is the extension of the "Decent Homes Standard" to the whole of the private rented sector (previously, like Awaab’s Law, it only applied to social housing). This outlines the minimum requirements for housing, ie that it must be actively "decent", not just free from hazards. In practice, this means that a property must be in a reasonable state of repair and has reasonably modern facilities and services (for example, kitchens must be less than 20 years old). 

This is not a story designed to spook schools; merely a reminder that the management of residential property is becoming increasingly regulated and comes with significant responsibilities.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, February 2025