Posted By Philip McAleenan
It is always useful to go directly to the statute and see what it says. In this case the Health Act 2006; Section 3 Smoke-free premises: exemptions:
(1) The appropriate national authority may make regulations providing for specified descriptions of premises, or specified areas within specified descriptions of premises, not to be smoke-free despite section 2.
(2) Descriptions of premises which may be specified under subsection (1) include, in particular, any premises where a person has his home, or is living whether permanently or temporarily (including hotels, care homes, and prisons and other places where a person may be detained).
It is clear that only the National Authority can make this decision. In respect of NI (where the relevant legislation is The Smoking (Northern Ireland) Order 2006); guidance issued by the Department of Health, Social Services and Public Safety states,
“4.1 Private accommodation
The legislation does not require private accommodation and dwellings to be smoke-free except for those areas that are used as a place of work and communal areas, such as stairwells in apartment blocks.
The legislation does not apply to work undertaken in a private dwelling on behalf of a person living in the dwelling:
• that is carried out solely to provide personal care;
• to assist with domestic work;
• to maintain the structure or fabric of the dwelling; or
• to install, maintain, or remove any service provided for the inhabitants.
This means that, for example, there will be no legal requirement for an individual not to smoke in their own home if a tradesman, nanny, cleaner, or carer is present. In such circumstances it is recommended that the householder and the person providing the service come to an agreement, in advance of the visit, about whether, when, and where smoking may take place”.
Thus in the circumstances described in the original posting, the home is not a “smoke-free” premise and no, the householder is not committing an offence.
Regards, Philip