Legionella risk assessment update please

Reply to the comment left by "safetylady silver" at "31/10/2015 - 09:35":

As a property owner and someone who rents out properties you have a duty of care to your tenants and anyone who works in the properties, ie decorators, plumbers, electricians, etc, to make sure the property is safe and this includes having the legionella risk assessed. Common sense really!

There are about 25 million households in UK.
As far as I know, there has been only one known case of legionella arising from a domestic source (correct me if you have better information).

Risk?

Duty of care - yes, of course.
This also applies to any householder - it's why you have householder liability within your insurance.

So all need to follow HHSRS guidance, this will fulfill any DoC (which is civil law - it is not enforceable in advance).

Tradespeople will be either self-employed or employed, which means they are subject to HSW legislation for themselves anyway.

The key point is your business / employment status.

If you are NOT in business, it is different to if you ARE in business.

If you are 'in business' and 'at work', fine, just get on with complying with health & safety legislation. But it is the widespread attempt to apply this to ALL landlords which gets to me.

Reply to the comment left by "safetylady silver" at "31/10/2015 - 10:39":

Might I suggest that you read the House of Commons clarification on the subject.

The HoC briefing note is not clarification, it has taken the guidance straight off the HSE website, and is therefore just as flawed. It was compiled by a researcher: it is not a definitive statement of law, and it was odd that it popped up in a paper relating to 'new' legislation, but that's another matter.

The missing component is still the distinction between different legal status of landlords - lets call them active or passive for simplicity.

Passive landlords are not in business (according to HMRC) nor self-employed just because they rent a couple of properties out.

Only people 'in business' or 'at work' are subject to health & safety AT WORK legislation. So an active landlord, busy on a daily basis with their property business (and probably with no other job) would have to comply with all housing AND health & safety legislation.

But a passive landlord only has to comply with the Housing (and other odd specific bits - gas, fire, CO alarms etc.).

And of course, the common law duty of care which we all have.

Reply to the comment left by "safetylady silver" at "31/10/2015 - 11:05":

I have checked this out with a qualified Health & Safety consultant and he has said 'because you are a landlord you are subject to health & safety legislation with respect to things like gas, water, etc. This is all clarified on the HSE website. Your employment status, ie working or not working, or whether the property is owned by an individual or a business does not remove the responsibility you have as an owner / landlord of a rented property. If one of your tenants were to die as a result of contracting Legionnaires' disease as a result of inhaling contaminated water from the shower in the rented property for example, you, as the landlord/property owner, would be liable.

I too am a very highly qualified H&S consultant, thankyou.
CMIOSH, award winning, 26 years experience, defended many enforcement actions (fire, EHO, HSE,). I have attended criminal, civil and coroner courts, and liaised with legal and insurance specialists. Just to blow my own trumpet.

I have also led and nurtured H&S advisers with various levels of experience. Many forget to go to the basics, as they are usually in the 'world of work' and so H&S legislation always applies - no further perusal required. If you ask a H&S at work specialist, you will get health & safety AT WORK advice.

The HSE website guidance is seriously flawed, fails to clarify, but is guidance only. A mistake many make is to take this as gospel. No-one can be nicked for not following guidance - there has to be a breach of legislation for which the person is a defined dutyholder.

I didn't even look at the guidance at first - I went straight to the legislation - HSWA, MHAS, COSHH. The dutyholder definitions do not apply to people who are not employers self-employed, or in control of property used for work.
End of.

You might ask your H&S consultant "liable under what?".
And then ask - "am I a dutyholder?" under whatever they cite.
One or all of the three I mentioned. Look at page 7 of the L8 ACOP to save time, it lists dutyholders.

Yes gas safety is a specific exception, but it is clear within the regulations that the HSWA dutyholder list is extended to include ALL landlords, No argument with that at all. There is a significant risk associated with gas - many deaths a year.

Print this and show it to your H&S colleague. Ask them to find the word 'landlord' in any of the legislation (not guidance). Under the dutyholder list, ask them to point out which of the 3 (above) you are.

For me - not a dutyholder under HSWA, MHAS, COSHH, L8 (which is COSHH anyway).

That doesn't mean I can ignore the safety and health state of my property, but I follow the Housing requirements, not HSW.

Reply to the comment left by "safetylady silver" at "31/10/2015 - 12:27":

If you look at the HSE document 'Legionnaires' disease A brief guide for dutyholders' on Page 1 under 'Who is this leaflet for?' it states 'This leaflet is aimed at employers and people in control of premises, eg landlords,' etc. This is repeated under the section 'What are my duties?' where it states 'Under Health and safety law, as an employer or as a person in control of premises (eg a landlord), you have health and safety duties,' etc. This gives all the clarification that is required to define who is responsible. End of argument.

David - you are absolutely correct in that the HSE GUIDANCE does say this.
But it t is, as said, guidance. Only guidance. And it is incomplete. It is NOT the LAW.

The legal references are there, but nobody actually looks at those. (except people like me who have spent 25 years interpreting H&S requirements).

So it does not end any 'argument' not that I want to argue with anyone, debate is sufficient.

If you are actually self-employed (or an employer) then this ACOP may apply, although ironically the self-employed are now (recently) exempt from H&S legislation 'where there is no risk to another person'. The HSE contradict themselves on this re: legionella, so just pay a tenner for a simple form and rest easy, if this is you.

However, if you are NOT self-employed, but a passive landlord, HMRC regard you as not 'in business' and certainly not self-employed either (for landlording purposes).

Health & safety at Work legislation is for people AT WORK. It would be up to the HSE to prove that a private landlord was AT WORK under the terms of the HSWA.

L8 *Legionella Code of Practice" when updated in 2013, forgot to clarify the distinction, and suggests, in the text "all landlords". However, in "Legal Responsibilities", the specific legislation (COSHH if you care) applies only to "employers or self-employed".

The HSE are being disingenuous in allowing the industry to continue this misunderstanding, they also state on their website that any risk is very low in single domestic properties and they will not be actively enforcing this. Hmm.

They do not have the power to even THINK about enforcing HSE law on anyone not actively engaged in managing their properties (so not in business) or defined as self-employed.

If they think COSHH applies, then so should all other health & safety AT WORK legislation, which is clearly a nonsense.

Housing safety standards - applicable to ALL properties - which include water quality and any risk of infection, but exclude L8 - are enforced by local authorities EHOs or Housing enforcers. Not by HSE. The only legislation HSE are warranted to enforce which applies to ANYONE, regardless of employment status, is the Gas Safety Regulations. And it is unusual for that reason.

It suits those in the water treatment industry (traditionally catering to businesses) to perpetuate this unfortunate misunderstanding, and the HSE don't care either, as they know they are never going to have to test the legality of it, because the risk is negligible and they will always have bigger fish to fry. Rightly so.

Those who want to, will cite the content of L8 (sadly inaccurate or incomplete in parts) but L8 is NOT law. It is industry Code and guidance. The law (COSHH) can only be applied to those specified as duty-holders under HSWA. Employers and self-employed.