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Smoking and the Health Act 2006

4.9 Smoking and the Health Act 2006

From the 1st July 2007 it has been illegal to smoke or allow smoking in
enclosed public areas of properties. The Health Act 2006 provides the
framework for smoke-free legislation and also creates a number of criminal
offences for those who choose to ignore or break the law.

Tenants of individually let rooms (and their guests) are only permitted to
smoke in those rooms with the door closed. Smoking is not permitted in
the common areas of a private dwelling where the individual bedrooms are
individually let. Such public areas include kitchens/living rooms, corridors,
halls, stairwells, lifts or shared toilets or bath/shower rooms. It does not
matter if all the tenants and guests agree that smoking in the common
areas is acceptable, it is still not legal, because the shared areas are not
part of any individual tenant’s “dwelling”. The “dwelling” is confined to the
room that has been let to them.

Where tenants are renting the entire dwelling (including tenants who are
renting on a joint tenancy and jointly renting the entire premises) then
there are no “public areas” within their premises. The Health Act 2006
allows smoking in their shared living space, because it forms part of their
dwelling. However, it would be reasonable to expect occupants to negotiate
and agree arrangements for permitting and restricting smoking.

Common stairwells and entry lobbies serving flats are public areas. Where
public areas are involved appropriate ‘no smoking’ signs should be clearly
displayed at the entrances to and within premises in required areas.
Signs must meet a number of minimum requirements. They must:

• be at least A5 size;

• display the international no-smoking symbol;

• contain, in characters that can be easily read by persons using
the entrance, the words:
“ No smoking. It is against the law to smoke in these premises”.

Inside buildings with public areas, for example at an entrance to smoke-
free premises which do not form part of the public areas, signs can simply
show the no-smoking symbol. This might be the case at the doorway where
a person leaves the landing of a block of flats and enters the hallway of a
shared flat that has been let room by room.

More detailed information about required smoke-free areas and
exemptions for private dwellings can be found in the LACORS publication,
Implementation of Smokefree Legislation in England and downloaded at:
www.cieh.org/uploadedFiles/Core/Policy/Public_health/Smokefree_
work_places_and_public_places/LACORS_guide_MAR07.pdf

Enforcement

Can be difficult. People smoking tobacco products in prohibited areas
should be politely asked to desist. Tenants who refuse to desist from
smoking in a public area after being asked politely to do so should be
provided with a letter from their landlord advising them that their failure
to adhere to this policy is a criminal offence, and that, unless the tenant
complies with the law, action may be taken against them.

Some landlords have a short clause in their tenancy agreement referring
to the need to comply with the requirement to have smokefree areas as
defined in The Health Act 2006.

If a tenant continues to smoke then they may be in breach of their tenancy
agreement and legal advice should be sought. Your Local Authority may
also be able to advise you.

If no positive outcome is forthcoming and other tenants continue to
complain then the landlord should take legal advice about the possibility
of initiating repossession proceedings. The landlord can face criminal
proceedings if they have not taken reasonable steps to stop smoking in
smoke free premises.