Legionella risk assessment update please

Gary, Jaycee. Good points. I had never thought about why and how landlords fell into the definition, but will look into that.

This morning, a similar letter from Taylors (our local Countrywide, same stable as Abbotts) fell onto my doormat with similar "advice".

No doubt, I should be more aware of Legionella as an issue and will address that. However, tone of letter from agent IMHO definitely scare mongering and I suspect another nice little earner for them (I have other issues with them switching energy suppliers without consent and using incompetent tradesmen too).

From what I can see from RLA and HSE, risk assessment must be by a competent person (and extent of assessment will depend upon nature of the property and risk). For my one and two bed properties with relatively new boilers that I have regularly serviced I don't think this is going to be too onerous (once I've ploughed through the fine print of the guidance). RLA guidance says that if you've a reasonable level of knowledge about practicalities involved, then you should be able to do this yourself.

Where the letter from agents is wrong in my opinion is to suggest that landlords must as a matter of law have an assessment carried out by a third party.

Great information in these posts, confirms what I was suspecting.

This topic was I believe recently covered in either an ARMA or similar conference for managing agents and commercial landlords.
My sceptical view is that it is just another money making ploy.
If you google search Legionella and Water Testing and include your post code you will find a local company who should do this for you for around £20.00.

in reply to Sarah Hill,

a great précis of who is competent. For a low risk system / property a competent person is anyone who can follow the HSE guidance.

in reply to Karen Peel,
indeed testing can be a money making scam. If you pay to test for legionella you will find it. Some of these bacterium are not even harmful to health. The ones that are, are only harmful to those with under lying health problems, elderly or neo-nates - usually these people are in a clinical environment (hospitals, care homes).

Risk Assess - Decide Action - Record

Having brought up this topic in April, and not being in a position to carry out any of the helpful suggestion mentioned in all the correspondence.., we agreed that our agents should call upon the services of ' an expert' to complete the Risk assessment in our very small BTL house in Notts.
Unsurprisingly we qualified as Low Risk. And the only recommendation was " We have asked the tenant to clean the shower head".
We haven't yet received the Invoice.
maggie Hurst

I have also received a letter from our lettings company requesting £120 for this Risk Assessment. They have given us the option of;

"...you of course, are free to appoint any qualified Risk Assessor you choose to undertake the Assessment,..."

As far as I understand someone is 'qualified' for this assessment if they are 'competent' which means it's a bit woolly, however, I have submitted the link below to a risk assessment form that may be of use. Comments are welcome.

http://www.privatehousinginformation.co.uk/site/files/2318-legionnaires-disease-risk-assessment-guidelines.pdf

I hope this may be of help to some of you.

If you are self-employed or running your property business through a company (making you an employer) the legionella rules apply - you are a 'dutyholder'. In fact ALL h&s rules then apply.

If you are neither, (see HMRC NIM238000) then you are likely not in business, as such, and therefore NOT subject to health & safety AT WORK legislation, which is the basis of this 'requirement'.
http://www.hmrc.gov.uk/manuals/nimmanual/nim23800.htm

This is fundamentally at the root of this situation. The HSE guidance does include the terms 'landlord' and 'domestic properties' but this still does not mean ALL landlords, as social landlords (councils, housing associations etc) are domestic property landlords. They are also very definitely employers.
The HSE guidance is disingenuous, some of it is lifted straight from the gas safety pages - but gas safety regulations extend the usual dutyholders to include ANYONE, not just at work.
I have registered a complaint with HSE, and they have now added a chunk of extra text onto the response to an earlier Mythbuster question (Myth case 357), which is wrong anyway, as the answer from the time should stand and a new case dealt with separately.

Anyway, this again adds in the text from gas safety and then throws in an oblique reference to s3 of the HSWA conjoined with the term 'duty of care' (a civil law term). Again - irrelevant if you are not in business (s/e or an employer). This is BS.

It is true that ALL landlords do have legal responsibilities to provide a safe property; but not necessarily under H&S AT WORK legislation. If you are not defined as 'at work' 'in business' etc - HMRC say you are a passive investor - then the legal requirement is ONLY from the Housing law, (and a civil duty of care). This is enforced via local councils, and has different sanctions. It is nothing to do with the HSE.

The HSE have also said in their 'guidance' (which is not law) that there may be no real risk (likely in a standard house) and that they will not be proactively inspecting / checking anyway. Put those two together, that means nothing will happen, unless something happens! And the legionella risk - in a domestic property - is so low as to be less than what HSE usually determine 'a risk'.

This is a right muddle, and I am vexed with the HSE, who are now trying to say that s53 of the HSWA (which is a long and complicated list of definitions) places any and every landlord as if 'in business' ie. self-employed (or should be). This is at odds with the HMRC view.

This needs challenge - even the House of Commons Briefing Paper has related only the flawed 'guidance'. You only have duties under HSW legislation if you are a dutyholder. With the exception of gas safety, all relevant regulations state dutyholders as 'employers, self-employed, or in control of premises used for work activities'.

See page 7 of the L8 ACOP if you want to get technical. Under 'health & safety law'. Then see para 22 of the actual ACOP (still guidance, but scopes the application of L8). Ask your letting agent how this applies to you and your lettings. You need not read any further - if yo are not in the categories of dutyholder, that's it.

BUT yes, Housing legislation DOES apply, and legionella gets a tiny mention there. Worth going to look, there is NO LINK to this from the HSE pages, or, strangely, even from the gov. site 'a guide to renting'.
https://www.gov.uk/private-renting/your-landlords-safety-responsibilities

https://www.gov.uk/government/publications/housing-health-and-safety-rating-system-guidance-for-landlords-and-property-related-professionals Note that HMOs are a slightly higher hazard.

The RLA risk assessment is still too complicated for most, but if it makes you feel better and you are browbeaten, spend no more than a tenner and 10 minutes to get rid of this. You can do it - don't hire someone else. The HSE guide does agree on that. DO NOT spend more, unless you are in a different category and are actually a legal dutyholder under HSWA. Even then £120 is steep.

I am trying to source a lawyer who can review this (for free!!!) but until that happens, I am still waiting for HSE to reply properly to my complaint.

It's all about your employment / business status.

Sorry - bit of a rant and not much time to do a precis which will make sense.

As a legionella consultant since 1979 I welcomed the House of Commons clarification with regard to legionella prevention in rented properties. A simple risk assessment is required, but the property can be regarded as very low risk if it has a combination boiler, with no hot or cold water storage. If this is the case then an Exclusion Certificate can be produced which will remain valid as long as the water services remain the same. However, any deadlegs in the pipework need to be removed and the tenants need to be made aware that the hot water should be set to be at 60C and any showers need to be descaled regularly. If there is a time lapse between tenants then the water services should be disinfected before the new tenants move in. If there is any hot or cold water storage in the property then a full blown risk assessment is required and these are usually valid for two years. More information can be found on our website http://www.aquaairhygiene.co.uk

Thanks to SafetyLady Silver for the link to HRRS. Extract from Section 18 below.

18 WATER SUPPLY
This is limited to the supply after delivery to the dwelling and concerned with water for drinking/cooking/washing/cleaning/sanitation.
Health effects
Main problems in the UK result from contamination of water:
• Gastro-intestinal illness associated with drinking water – (campylobacter/cryptosporidium);
• Respiratory infection – typically caused by legionella and commonest result of infection is an acute pneumonia (Legionnaires Disease) with 10 – 15 per cent of cases proving fatal.
Appendix III
43
Preventive measures that can affect likelihood and harm outcomes:
• Water pipework and storage facilities provided and maintained according to requirements of BS 6700;
• Plumbing systems to meet requirements of Water Supply Regulations 1999;
• Stored private drinking water supplies regularly sampled and analysed;
• Tanks covered to prevent ingress of contamination (i.e. birds/insects etc.);
• Appropriate materials used for pipework/storage tanks/fittings; and
• Proper maintenance of water filters and softening systems.
HAZARD ASSESSMENT
• Visual examination of the installations and fittings within the dwelling for supply of water, then checking the water visually and for odours;
• Quality;
• In HMOs checks to be made on temperature of water in pipes/cold water cisterns, hot water vessels/tap discharge; water sampling as appropriate.
*************
Having carried out LRA on domestic rented properties a fair number fail to meet these requirements, but is only by carrying out a risk assessment (and documenting in a report) could others be confirmed Low Risk.

Incidentally there is no basis for having to carry out a risk assessment very 2 years, only that it is reviewed periodically (check list against original assessment). So for many properties this is a one off cost, although prudent to repeat every 5/10 years depending on the system and condition (unless other changes as defined in the L8 ACoP.

Anyone reading the Hazard Rating System will see it is very simple and does not require (or even mention) the landlord having a risk assessment (or exemption certificate - eh???).

If you are NOT 'in business' ie NOT a dutyholder under H&S legislation, L8 (and all that risk assessment stuff) irrelevant, despite what people are saying.

If you ARE a company or self-employed, working in your property business, fair dos - you ARE a dutyholder under H&S law All of them by the way, not just for legionella).

I am not - I spend about 50 hours a year on my property management. It is not a business. I don't have any H&S duties. It's a legal distinction which is being fudged by the HSE.

You do however, have to be able to pass scrutiny under the HSSRS, kindly set out in full by Jireh above.

But that is much simpler. And proportional.

Decide which category you are first.

Reply to the comment left by "Jireh Homes" at "30/10/2015 - 22:14":

BS6700:2006 was replaced by BS8558:2011. All cold water storage tanks for whatever use must comply with The Water Supply (Water Fittings) Regulations 1999. All cold water storage tanks, however small, need to be inspected every year to comply with the guidance given in HSG274 Part 2, 2014. Also temperatures need to be checked at the tap outlets and the hot water cylinders also need attention. So there is an ongoing requirement for all systems, however small if there are cold water storage tanks or hot water cylinders installed in a rented property.