Legionella risk assessment update please

Martin & Co as Letting Agents are correct and at £60 (whether including or excluding VAT) is a very good price. In our area in Scotland, been quoted £160 +VAT.

Acknowledge comment sketch not necessary and could simply refer to closest representation Fig No in HSG 274 Part 2, however my sketch is a fairly basic hand drawn line diagram as adds a "pictorial" representation of the HW & CW system.

Allan

In all the commentary about landlords and Legionella assessments has no-one thought to query just what locus HSE has in the first place as regards the letting of a house or flat?

HSE’s remit is to enforce the Health and Safety at Work Act 1974 but, consider: a self-contained house or flat is not a place of work, neither the act of letting a property nor living in it constitutes a work activity and the relationship between landlord and tenant is not that of an employer and employee. So, just where is the connection?

There are three relevant considerations-

(a) HSE’s Code of Practice L8 'The Control of Legionella Bacteria in Water Systems', as read with the statement in its website FAQ under the section headed 'As A Landlord What Are My Duties', is directed at "Organisations, or self-employed individuals, who provide residential accommodation or who are responsible for the water system(s) in their premises... ";

(b) paragraph 2 of the Code applies it to "employers and those with responsibilities for the control of premises, eg landlords"; and

(c) paragraphs 15 and 28 provide that duties as regards risk of exposure to legionella are in respect of work activities and employers and that control of premises or systems is in connection with work.

Now, whilst all that makes perfect sense in the context of operating a multi-tenanted / multi-user facility such as a hotel, care home, hostel and, arguably, an HMO, it makes no sense whatsoever in the context of letting a self-contained house or flat, where no employment or work activity is taking place.

I took this up with HSE. Its rationale – notwithstanding that most individual landlords own their rental property as an investment and are typically employed in an unrelated day job or are retired – is that the landlord of a self-contained house or flat is self-employed and therefore falls within the scope of the Act.

However, section 53(1) of the Act provides a definition of ‘self-employed’, which is-

“an individual who works for gain or reward otherwise than under a contract of employment, whether or not he employs others”

That still does not describe a property owner letting a self-contained house or flat. When I challenged HSE it stated-

“For the purposes of the Act, landlords including ‘investor landlords’ are considered to be self-employed because they are receiving a rent which is deemed to be working for gain or reward, and therefore have a duty to their tenants under section 3(2)” [ie, the provision of the Act that applies it to the self-employed].

In other words, HSE 'for the purposes of the Act' “considers” landlords to be self-employed and “deems” them to be “working” just because it wants to, not because the Act, Court judgement, other objective legal opinion or HMRC, says they are (HMRC being the actual determinator of whether or not a person is self-employed; as we know, a typical investor landlord does not have to register as a self-employed person or sole trader, is not required to pay NI contributions on rental income and does not have to submit any accounts other than his standard personal tax return. Hence, he is not self-employed.).

So, what we have is HSE intruding into an activity where it has no locus, with the implicit threat of prosecution and the expense of a defence ensuring that individual practitioners will not be able to challenge it.

That is wrong and is what gives HSE a bad name. If HSE considers that the risk of contracting Legionella from within a house or flat is material (doubtful, Google the statistics) then the proper course of action for it is to put a case to Government that legislation is needed to address the situation in the manner of, for example, the gas safety regulations, not to bluff and bully its target audience.

I am not a lawyer so am happy to be corrected by m’ learned friends in the Property118 readership but, on the face of it, HSE is chancing it.

A final thought, why aren’t landlords associations more sceptical about HSE instead of rolling over whenever it says ‘boo’?

Jaycee you make some very good points there. Like you I do feel this is a sledgehammer to crack a walnut. However the HSE regs are there for us to comply with now domestic hot water systems have fell into the legislation with removal of the 300 litre limit. The HSE guidance says you should risk assess as a "competent person". I personally don't think we should all need to go on training courses to work out a risk assessment which in 99% of cases is going to work out as "no forseeable risk" Like you I agree that the cases of legionella in domestic homes is negligible and it would be interesting to work out the risk in percentage terms; number of cases caused by domestic hot water systems divided by number of households. As in all things property there is money to be made by the HS industry. To justify this it is made more "complex"by adding technical blah such as drawing schematics of systems and water testing when L8 does not definitively stipulate it. I am with you that a risk assessment properly done by a landlord identifying the potential risks and then control measures to minimise them should be sufficient. No doubt the legionella expert community will give me a good strafing and shoot me down in flames but I do think this is a bit of a storm in a header tank.

Herein lies the problem. As the legislation removed the 300 L storage threshold, (originally written in for a very good reason and the requirements thus drafted with non-domestic properties in mind) we are stuck with a sledge hammer to crack a nut. HSE will never offer an exception so the solution is now the development of a Risk Assessment appropriate to the small domestic properties. The reality is this could be a generic document with space to simply type in the property address and tick box for the very few key risks. Cold water supplied from the mains is always at ground temperature thus <20 degC (although no doubt there will be the very odd exception) and hot water from a boiler pretty much above 50 degC (simply run over hand, no need for a thermometer). That with a few visual checks and job done. Confidence in competency may be the challenge for many, in which case either become educated or engage the service.

Read this:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/363380/LD_annual_report__2013_PHE_2014392.pdf

Cases of legionella 4.9 per million population. It does not state what proportion of these are in residential rental property. One third are caught abroad and highest risk profile is over 50 with an underlying health issue such as heart disease.

So how can HSE and letting agents justify a draconian assessment regime with a very low rate if risk and no evidence of contraction in residential rental properties.

Reply to the comment left by "Jireh Homes" at "23/04/2015 - 09:36":

HI Alan, any chance you could pop your risk assessment form up?!! thanks 😉

If Alan would like to email the form to me, I will be happy to load it into our system and create a link to it.
.

My template form not yet developed to a standard suitable for public sharing. However should others have a more professional looking document please email to Mark.

Reply to the comment left by "Jaycee " at "03/05/2015 - 21:32":

Absolutely Jaycee.
Putting some of the more complex points about legionella and risk assessments to one side, if you are not registered with HMRC as self-employed, you ARE NOT self-employed! It is a proper legal status, and the HSE would have a hard time trying to re-classify someone NOT self-employed (ie. retired, otherwise employed with another job, etc.).
HMRC provide a special form for declaration of rental as a 'side income' for tax purposes, without you being self-employed or assumed that this income is your 'business'. So for smaller landlords, comfortable in their own status, don't worry about this 'requirement'. Which not a regulation as such - L8 is an ACOP backed up by the COSHH regulations.
Not sure if you managed to speak to an actual HSE inspector (rare!) or were given the standard answer by the HSE call centre operatives. The standard answer tends to be 'yes you have to . . . ' as that is the easiest answer for them, not necessarily the most accurate or useful for you.

Summary:
The risk of legionella is very low.
The risk of legionella in a house (domestic) water system is very very low.
The capacity of the HSE to actively enforce in low risk sectors is severely constrained.
The interest in prioritising small landlords (s/e or not) is low.
The application of work legislation to a domestic setting makes for a potential legal battle in any case.

The understanding of either the problem, or the legal situation, is also unfortunately low, meaning that agents will be adamant that 'every landlord has to . . . ' That may be the bigger hurdle - having to 'provide risk assessment evidence' just for the agents to tick a box.

If you own in a block of flats then it is the block management companies responsibility to do regular water checks and this should show in the annual accounts. They should also provide a copy of the certificate if asked.