Deposit Return: Withholding Emergency Call Out Fee after Carbon Monoxide Incident

mark55man

My DD is just checking out of her privately rented flat having finished at Uni.  At the start of the year (pre Covid) she got CO poisoned from a faulty boiler which was replaced alongside the battery in the CO detector which hadnt been changed.  At the time we decided not to formalise the complaint as the Landlord was pretty efficient in fixing it.

Now however he is trying to withhold from the deposit the £100 call out fee for the initial resolution - this seems outrageous given that he knew my DD had tested positive for CO at the local A&E so it was a genuine call and wasn't her being flighty.  Can I solicit opinions from landlords and tenants about whether we should contest this, as the landlord is playing pretty hardball saying it was her decision.  Almost to the point where DD wants to reopen the complaint if that's the way its playing out

moneysavinghero

No question. Contest it. You will get it back (i presume it's a protected deposit scheme).

theartfullodger

Agreed.  Dispute via deposit adjudication scheme.  Schemes brought in because too many landlords were withholding deposits unfairly.

Artful: landlord since 2000

greatcrested

Certainly contest it, and most likley she will win.

But to play devil's advocate, I suspect the LL is relying on the fact that your daughter did not properly maintain the alarm.

2. Find out who is responsible for checking the alarms are in working order

The regulations require landlords to ensure alarms are installed in their properties with effect from 1 October 2015. After that the landlord (or someone acting on behalf of the landlord) must ensure all alarms are in working order at the start of each new tenancy.

After the landlord’s test on the first day of the tenancy, tenants should take responsibility for their own safety and test all alarms regularly to make sure they are in working order. Testing monthly is generally considered an appropriate frequency for smoke alarms. If tenants find that their alarm(s) are not in working order during the tenancy, they are advised to arrange the replacement of the batteries or the alarm itself with the relevant landlord.

https://www.gov.uk/government/publications/smoke-and-carbon-monoxide-alarms-explanatory-booklet-for-landlords/the-smoke-and-carbon-monoxide-alarm-england-regulations-2015-qa-booklet-for-the-private-rented-sector-landlords-and-tenants

Having said that, unless the boiler was a solid fuel one (rather than eg gas), or the room had a solid fuel fire in it as well, there was no legal requirement for a CO alarm at all - and hence no requirement for the tenant to test/maintain it.

NB - this assumes England/Wales

moneysavinghero

greatcrested said:

Certainly contest it, and most likley she will win.

But to play devil's advocate, I suspect the LL is relying on the fact that your daughter did not properly maintain the alarm.

2. Find out who is responsible for checking the alarms are in working order

The regulations require landlords to ensure alarms are installed in their properties with effect from 1 October 2015. After that the landlord (or someone acting on behalf of the landlord) must ensure all alarms are in working order at the start of each new tenancy.

After the landlord’s test on the first day of the tenancy, tenants should take responsibility for their own safety and test all alarms regularly to make sure they are in working order. Testing monthly is generally considered an appropriate frequency for smoke alarms. If tenants find that their alarm(s) are not in working order during the tenancy, they are advised to arrange the replacement of the batteries or the alarm itself with the relevant landlord.

https://www.gov.uk/government/publications/smoke-and-carbon-monoxide-alarms-explanatory-booklet-for-landlords/the-smoke-and-carbon-monoxide-alarm-england-regulations-2015-qa-booklet-for-the-private-rented-sector-landlords-and-tenants

Having said that, unless the boiler was a solid fuel one (rather than eg gas), or the room had a solid fuel fire in it as well, there was no legal requirement for a CO alarm at all - and hence no requirement for the tenant to test/maintain it.

NB - this assumes England/Wales

But from what the OP said i read it as they LL replaced the dangerous and faulty boiler and the battery at the same time.
And also from what you posted:

If tenants find that their alarm(s) are not in working order during the tenancy, they are advised to arrange the replacement of the batteries or the alarm itself with the relevant landlord.

Unfortunately the tenant found out the alarm was faulty by being poisoned. But it is still the LL responsibility to get it replaced once it has been found faulty

phillw

greatcrested said:

But to play devil's advocate, I suspect the LL is relying on the fact that your daughter did not properly maintain the alarm.

Whether the alarm was maintained or not would have no bearing on whether there would need to be a call out to fix the faulty boiler.
The landlord would need to provide evidence that it was the tenants negligence that caused the fault & I don't see how they could do that.
It could make a difference if you tried to sue for compensation because of the carbon monoxide poisoning.

greatcrested

moneysavinghero said:

greatcrested said:

Certainly contest it, and most likley she will win.

But to play devil's advocate, I suspect the LL is relying on the fact that your daughter did not properly maintain the alarm.

2. Find out who is responsible for checking the alarms are in working order

The regulations require landlords to ensure alarms are installed in their properties with effect from 1 October 2015. After that the landlord (or someone acting on behalf of the landlord) must ensure all alarms are in working order at the start of each new tenancy.

After the landlord’s test on the first day of the tenancy, tenants should take responsibility for their own safety and test all alarms regularly to make sure they are in working order. Testing monthly is generally considered an appropriate frequency for smoke alarms. If tenants find that their alarm(s) are not in working order during the tenancy, they are advised to arrange the replacement of the batteries or the alarm itself with the relevant landlord.

https://www.gov.uk/government/publications/smoke-and-carbon-monoxide-alarms-explanatory-booklet-for-landlords/the-smoke-and-carbon-monoxide-alarm-england-regulations-2015-qa-booklet-for-the-private-rented-sector-landlords-and-tenants

Having said that, unless the boiler was a solid fuel one (rather than eg gas), or the room had a solid fuel fire in it as well, there was no legal requirement for a CO alarm at all - and hence no requirement for the tenant to test/maintain it.

NB - this assumes England/Wales

But from what the OP said i read it as they LL replaced the dangerous and faulty boiler and the battery at the same time.
And also from what you posted:

If tenants find that their alarm(s) are not in working order during the tenancy, they are advised to arrange the replacement of the batteries or the alarm itself with the relevant landlord.

Unfortunately the tenant found out the alarm was faulty by being poisoned. But it is still the LL responsibility to get it replaced once it has been found faulty

probably right, though it's unclear what the call out was for " the £100 call out fee for the initial resolution ".

Had the tenant been testing the alarm regularly as required (she may have been but I suspect not) then the alarm would have been maintained.

they are advised to arrange the replacement of the batteries or the alarm itself with the relevant landlord.

The wording is imprecise. I've always believed replacement of batteries (as a consumable) was the tenant's reponsibility, whereas replacement of an alarm would fall to the landlord. Punctuation can be so important!

Many tenancy agreements specifically place battery maintenance on the tenant - though yes, contracts cannot over-ride statutory obligations, so if anyone knows where the stat obligation lies I'd be interested.

But I'm being pedantic. As I started by saying:

"Certainly contest it, and most likley she will win." (sic).

mark55man

thank you all.  that is all really helpful - and I do appreciate the devil's advocate viewpoint, its understanding nuances like that from people who are more experienced that is key in deciding what we do next 

mark55man

Also to confirm - property in England

AdrianC

Don't CO alarms do the same as smoke alarms, and tell you (incessantly...) that the battery is running flat? And don't they have a test button...?

How long was she in residence in the property before the CO alarm turned out to have failed? Did she not test it when she moved in? Sure, the landlord should have checked it prior to move-in. But who lets others take responsibility for their own safety, for the sake of a single button-press...?

greatcrested

mark55man said:

thank you all.  that is all really helpful - and I do appreciate the devil's advocate viewpoint, its understanding nuances like that from people who are more experienced that is key in deciding what we do next 

And just to repeat the nuance, unless there is a solid fuel fire eg coal-fired Aga, wood burning stone, a CO alarm is not needed at all (by law rather than common sense), nor therefore does it need testing (by the tenant OR the landlord).

(don't ask me why though - I have a CO alarm near my oil-fired boiler)