When there is a legal requirement for someone to be 'qualified and competent' to carry out a job, how would this be tested?

Question

The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 were recently introduced in England and require that landlords carry out an inspection and testing of the electrical installation in their properties at least every 5 years. This must be carried out by an electrician deemed 'qualified and competent', which is defined as such in the guidance here (https://www.gov.uk/government/publications/electrical-safety-standards-in-the-private-rented-sector-guidance-for-landlords-tenants-and-local-authorities/guide-for-landlords-electrical-safety-standards-in-the-private-rented-sector):

"When commissioning an inspection, in order to establish if a person is qualified and competent landlords can:

• check if the inspector is a member of a competent person scheme; or
• require the inspector to sign a checklist certifying their competence, including their experience, whether they have adequate insurance and hold a qualification covering the current version of the Wiring Regulations and the periodic inspection, testing and certification of electrical installations."

The second bullet point seems to have been kept deliberately vague and has led to confusion among electricians as to who would qualify to conduct the inspection and testing and fill out an appropriate report.

If somebody believes they can fulfil the requirements of the second bullet point, i.e. they have demonstrable experience working as an electrician, have adequate insurance and hold qualifications from a recognised institution like City & Guilds covering the current version of the Wiring Regulations and the periodic inspection, testing and certification of electrical installations, would they legally be able to conduct these checks?

It seems to me that the answer, given the vagueness of these regulations, should be an obvious 'yes'. However, having asked around on some electrician forums, it's been pointed out that the important term is 'competence'. Is this really an important term, and if so, how would this be tested?

Answer 1

When a court is required to decide whether someone is professionally “qualified” or “competent,” it will generally consider the opinion of expert witnesses from that profession.

For example, in Stothers (M & E) Ltd v Leeway Stothers Ltd [2011] NIQB 35, a building contractor claimed that an electrical contractor had breached a contract requiring work to be done by “qualified electricians.” Two of the electricians had no formal qualifications, but through experience, had acquired “grandfather rights” entitling them to work as electricians. The four experts disagreed as to whether these electricians were “qualified.” After hearing from the experts, the judge decided that the electricians were not “qualified,” for the purpose of that specific contract, because they had not fulfilled the requirements of an objective standard.

It is not possible to say, in general, if someone who “believes … they have demonstrable experience working as an electrician, have adequate insurance and hold qualifications from a recognised institution” is “competent to undertake the inspection and testing required” in a particular case. The person’s belief may be incorrect or unreasonable. The inspection and testing required may be unusually complicated. Expert witnesses can give evidence about this. If there are conflicting opinions, the court must make a decision based on the facts of the particular case and the purpose of the legal requirement, as occurred in Stothers.

The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 require that a “qualified person” be “competent” to work “in accordance with the electrical safety standards,” namely the Wiring Regulations, BS 7671: 2018(3). This article in Professional Electrician & Installer analyses regulation 621.5 of BS 7671, which requires that “periodic inspection and testing shall be undertaken by a skilled person … competent in such work.” Such analysis of a specialised industry standard, if presented by an appropriate expert, could be adopted by the court.

Answer 2

A person who does either of the bullet points is “qualified and competent”

At least as far as the landlord is concerned. The electrician could be a plumber who’s lying through their teeth but so long as the landlord doesn’t know this and has no reason for suspecting it, the landlord has complied with the requirements.