Britain’s most famous thermostat — what does the law say about a tenant’s right to control the temperature in their home?
A how to guide looking at the case of a landlord who installed a ‘cage’ around a tenant’s thermostat [England and Wales]
In late 2019 a housing issue which many advisers may have come across featured widely in the mainstream news¹, following a viral tweet². The story concerned a tenant whose landlord installed a ‘cage’ over the thermostat in his home, preventing the occupiers from being able to adjust the central heating controls.
While we have no further details of the tenancy, the most likely scenario which springs to mind is that the rent is inclusive of bills, and the landlord is seeking to limit their liability for heating costs by retaining control of the temperature within the property. Tenancy agreements where bills are covered by the landlord are most commonly seen in Houses in Multiple Occupation (HMOs), and so it seems likely that the tenant may be living in a shared house.
What does the law say about temperature control in rented properties?
The Housing Health and Safety Rating System (HHSRS), introduced by the Housing Act 2004³, governs housing conditions to enable local authorities to define hazards. Hazards are identified which can be attributed to the design, construction and maintenance of the dwelling, and are divided into 29 categories encompassing physiological, psychological, infection and accident related risks⁴.
Excess heat and excess cold are both listed as physiological hazards. Given the suspected motivation for the landlord’s action being to limit heating costs, the tenants might be more concerned about the risk of excess cold arising as a result of the thermostat ‘cage’.
The HHSRS guidance states that small risks of adverse health effects arise when indoor temperature drops below 19 degrees centigrade, with serious health risks occurring below 16 degrees⁵. The guidance also says that “heating should be controllable by the occupants, and safely and properly installed and maintained. It should be appropriate to the design, layout and construction, such that the whole of the dwelling can be adequately and efficiently heated.”⁶
The advice relating to HMOs differs slightly, recommending that “in multi-occupied buildings provision for space heating may be centrally controlled. Such systems should be operated to ensure that occupants are not exposed to cold indoor temperatures and should be provided with controls to allow the occupants to regulate the temperature within their dwelling”⁷. This means that if the property is a House in Multiple Occupation (HMO) then it may be reasonable for the landlord to control the heating centrally, but tenants should be able to adjust radiators in their own room.
Has the landlord acted illegally?
The legality of a landlord controlled thermostat is likely to rely on whether this results in hazards (namely excess cold, or possibly but perhaps less likely, excess heat). Where local authorities carry out inspections and identify a hazard, they have powers (and indeed duties in respect of any ‘Category 1 hazard’ — those scored as highest risk on inspection) to serve notice on the landlord requiring them to take appropriate action⁸. In a case such as this, the most likely outcome, should a hazard of excess cold be identified, would be an ‘improvement notice’⁹ requiring the landlord to carry out remedial action — although the authority may well start by raising the issue with the landlord less formally.
Landlords failing to comply with enforcement action may face prosecution, a civil penalty of up to £30,000¹⁰, a rent repayment order¹¹ or a banning order¹². The local authority can also carry out the work themselves where a landlord is in default¹³.
In addition, under the new Homes (Fitness for Human Habitation) Act 2018 (H(FHH)A 2018) all residential tenancies in England granted, renewed, or arising on expiry of a fixed term after 20 March 2019 are now required to be fit for human habitation¹⁴, and in determining this regard shall be had (amongst other things) to any prescribed hazard which gives rise to a risk of harm to the health or safety of an actual occupier¹⁵. Failure to comply with this can provide for a damages claim by the tenant against the landlord — or an order for specific performance can be sought, compelling the landlord to take action to remedy any breach. From 20 March 2020 this will extend to all periodic or secure tenancies in existence. See our Adviser Online article from last year: What the Homes (Fitness for Human Habitation) Act 2018 means for advisers.
Other factors to consider might be whether the property is subject to an HMO licence which prescribes particular conditions relating to the heating, or whether there is any concern that the landlord is in fact deliberately creating extremes of temperature with an intent or expectation that this may drive the tenants out — in which case a harassment offence might also be committed¹⁶.
What can the tenant do?
The tenant can direct their landlord to the HHSRS operating guidance, and ask that the landlord reinstates a means for the occupiers to control the temperature within their home. If negotiations are unsuccessful, the tenant could consider asking the local authority to take action against the landlord, or could bring a damages claim themselves under the H(FHH)A 2018 (if it applies to their tenancy) if a hazard exists which renders the property “not reasonably suitable for occupation in that condition”¹⁷.
For any private tenant however challenging their landlord will inevitably carry a risk of retaliatory eviction. Protection against this¹⁸, which invalidates a ‘no fault’ notice under s.21 Housing Act 1988, will apply only in two specific circumstances, if:
- the local authority serves a ‘relevant notice’ in respect of a category 1 or 2 hazard (at any time in the 6 months before the service of the s.21 notice)¹⁹, or
- the tenant has complained in writing to the landlord about repairs, and the landlord fails to make an adequate response but serves a s.21 notice after the complaint. If the local authority then serves a ‘relevant notice’ in respect of a category 1 or 2 hazard prior to any possession hearing, the s.21 notice will become invalid²⁰.
It is also worth noting that any claim by the tenant is likely to be outside the scope of legal aid unless a serious risk of harm to the health or safety of the occupiers is identified. Legal aid is available in possession action cases, and so a disrepair claim raised in defence to possession action will be in scope.
In practical terms, the tenant might consider trying to take control of the heating themself by using electric heaters. There is a risk however that if all bills are covered by the landlord, they may respond negatively to a higher electricity bill, and perhaps seek to serve a section 21 notice to terminate the tenancy at the end of the fixed term, or seek to alter the rent or other tenancy terms as a condition of any renewal. If the occupier has less security than that of an assured shorthold tenancy (for example someone who has a resident landlord), then retaliation may be more likely still, and negotiation will be key.
Comment
Disputes about heating use are not uncommon in shared occupancy homes between tenants and landlord, or even between the tenants themselves. While a landlord may consider remote control to be a solution to such issues, it could be unlawful if it leads to temperatures which are sufficiently high or low to the extent that they represent a hazard within the property. The guidance on avoiding or remedying such hazards is quite clear in its assertion that tenants should be able to make adjustments to the temperature within their home. The starting point for any tenant affected by such an issue might be to gauge minimum temperatures within their home, and then seek to negotiate with their landlord (taking account of their security of tenure and the risk of eviction) before considering enlisting local authority assistance or commencing litigation.
Amy Hughes is a member of the Housing Expert Advice Team at Citizens Advice.
¹ Can my landlord lock my thermostat in a box? BBC News, 5 November 2019, https://www.bbc.co.uk/news/uk-50294404
² @alexmilsom on Twitter, 3 November 2019, https://twitter.com/alexmilsom/status/1190665715038261249
³ Part 1 Housing Act 2004
⁴ reg 3(1) and Sch.1 Housing Health and Safety Rating System (England) Regulations 2005 SI 2005/3208; reg 3(1) and Sch.1 Housing Health and Safety Rating System (Wales) Regulations 2006 SI 2006/1702 (W.164)
⁵ Annex D 2.05, Housing Health and Safety Rating System Operating Guidance, February 2006
⁶ Annex D 2.20 HHSRS Operating Guidance, ibid
⁷ Annex D 2.22, HHSRS Operating Guidance, ibid
⁸ Part 1 Housing Act 2004
⁹ s.11 and s.12 Housing Act 2004
¹⁰ s.30 and 32 Housing Act 2004
¹¹ s.40(3) Housing and Planning Act 2016
¹² s.16 Housing and Planning Act 2016; reg 3 and Sch Housing and Planning Act 2016 (Banning Order Offences) Regulations 2018 SI 2018/216.
¹³ s. 31 Housing Act 2004
¹⁴ s.9A Landlord and Tenant Act 1985, as inserted by s.1(3) Homes (Fitness for Human Habitation) Act 2018
¹⁵ s.10(1) Landlord and Tenant Act 1985, as amended by s.1(4) Homes (Fitness for Human Habitation) Act 2018
¹⁶ s.1(3) Protection from Eviction Act 1977
¹⁷ s.10(1) Landlord and Tenant Act 1985, as amended by s.1(4) Homes (Fitness for Human Habitation) Act 2018
¹⁸ s.33 Deregulation Act 2015
¹⁹ s.33(1) Deregulation Act 2015
²⁰ s.33(2)-(5) Deregulation Act 2015
