Legionella scaremongering by some letting agents debunked

by Readers Question

14:30 PM, 18th May 2015
About 3 years ago

Legionella scaremongering by some letting agents debunked

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Legionella scaremongering by some letting agents debunked

For months now I have been fending off veiled and not so veiled threats from ill-informed letting agents about the consequences of not shelling out for legionella tests.

I have directly engaged several letting agents on their attempts to make landlords feel as though they are committing a crime against humanity unless immediately cave and hand over handfuls of cash.

So, as a service to landlords, I offer the following Health and Safety Executive directive at the bottom of this article

Next time you get one of those threatening letters from an agent just point them to that.

Hopefully it will stop the requests without having to raise your blood pressure too much trying to explain the realities to an agent that simply doesn’t have a clue on the subject themselves anyway.

Badger

Case 357 – Consultants and Letting Agents misinterpreting the risks of exposure to legionella of their tenants

Issue

Consultants and letting agents are i) using the revised L8 ACOP to infer there is new legislation regarding landlords responsibilities and ii) misrepresenting what the law requires of landlords of domestic rented properties in relation to assessing and controlling the risks of exposure to Legionella bacteria of their tenants, for financial gain.

Panel opinion

Health and Safety law does not require landlords to produce a ‘Legionnaires testing certificate’. Legionella testing is required only in exceptional circumstances and generally not in domestic hot and cold water systems. Such letting agents and consultants are scaremongering landlords, for financial gain, by misinterpreting and exaggerating the legal requirements to manage and control legionella in domestic premises.Legionella

HSE has published guidance for landlords, free to download from HSE’s website:

http://www.hse.gov.uk/legionnaires/faqs.htm – As a landlord, what are my duties?

http://www.hse.gov.uk/pubns/priced/hsg274part2.pdf



Comments

Neil Patterson

14:31 PM, 18th May 2015
About 3 years ago

Excellent thank you for the update 🙂

Steve From Leicester

15:36 PM, 18th May 2015
About 3 years ago

I've just finished commenting on another post where a landlord is being threatened by a spurious personal injury claim.

As an agent I advise landlords to cover their backsides on legionella testing. To cover my own backside I ask them to sign a disclaimer acknowledging that we recommended it if they decline a test.

The comments from the HSE quoted above seem pretty cut and dried but other stuff on their own pages DOES imply there's a duty to check. My agency manages 500 properties and its only a matter of time before someone has a pop at making a claim because "their water supply made them ill".

Badger

15:49 PM, 18th May 2015
About 3 years ago

"As an agent I advise landlords to cover their backsides on legionella testing. To cover my own backside I ask them to sign a disclaimer acknowledging that we recommended it if they decline a test."

And I view such disclaimer requests as an invitation to put one's head in a noose.

I object to them and regard them in the same vein as that old saw "when did you stop beating your wife?"

IOW, as a landlord, you're damned if you do and your damned if you don't once an agent has attempted to 'cover their backside' in this way.

To begin with agents that tried this one with me used to get an electronic flea in the ear but now I just ignore their stuff and file it in the round cabinet under the desk.

What i expect from an agent on a full management contract is to have correctly researched this issue in the first place and generated a suitable information sheet for tenants which is issued as required.

Such behaviour (spurious demands for money for unnecessary tests) feeds into thoughts of whether I want to continue doing business with agents that behave this way.

Steve From Leicester

16:59 PM, 18th May 2015
About 3 years ago

So Badger, you object to paying money for "unnecessary tests" but you don't want to actually stick your neck out and place this on record?

Sorry, but its not the job of a managing agent to offer professional advice to tenants on how to minimise the risk of Legionnaires disease.

As a managing agent I'll offer you my professional advice which will always err on the side of caution. Where Legionellas is concerned, if you think there's a risk get it checked out. If you don't then say so. Either is fine - its your property. But you can't have it both ways.

Badger

17:10 PM, 18th May 2015
About 3 years ago

The HSE advice is clear - a typical domestic arrangement does not require special tests.

Prudence suggests that guidance is issued to tenants on the correct method of maintaining any shower and shower head - basically, just ensure that hot (much hotter than most people would find comfortable to shower in) water is run through it once a week or so.

That's it.

Being asked to sign disclaimers to protect an agent's derrière is quite another matter.

Being asked to pay money for tests once is one thing. Being asked to establish a regular pattern of paying these fees is quite another. But more than that I object to the additional overhead of having to manage yet another thing. (I wouldn't be surprised if before long it will become a part of a landlord's statutory duty to pop round once a day and check that a tenant's bottom is clean!)

With regard to what is and isn't the job of an agent I would suggest that the phrase "full management" has scope for interpretation depending upon which side of the line one sits.

Jireh Homes

12:25 PM, 19th May 2015
About 3 years ago

Many thanks Badger for the extract and link to HSE Case Note 357. This is extremely useful, although does not negate the requirement for a Risk Assessment by a Competent Person. However agree with your guidance as this addresses the key very low potential risk. There is a recent posting on Property118 on this specific subject. Allan

Luke P

14:25 PM, 19th May 2015
About 3 years ago

Reply to the comment left by "Badger " at "18/05/2015 - 17:10":

I am an agent with several hundred properties and I too would be inclined to have my landlords sign a disclaimer. As far as I'm concerned, they have three options -do the checks themselves, pay me to do them or do nothing (but absolve me).

We have completely removed any reference to 'full management' because that is open to interpretation (mainly in that I could be stitched for virtually anything) and no doubt others will follow. What will become the norm is for finding a tenant, check in, check out and collecting the rent...possibly arranging the annual gas check. Anything else will be extra.

I have the experience and the knowledge that my landlords need. Why is it that solicitors (whose experience and knowledge people seek and pay for and are essentially just middlemen between the client and the law) are not criticised in the same way agents are?

Possibly the difference with me is I have 100+ houses of my own and only got into management because people requested my services and I'm not just set up purely as a middleman...what affects me affects my landlords equally.

If a basic advice sheet is all that's needed, I would be more than happy to include that with the pack for all new sign ups, but you can bet that won't be enough if someone does try a claim for legionella. HSE will likely want a weekly report of you attending the property and disinfecting their entire house.

Rob Crawford

16:54 PM, 19th May 2015
About 3 years ago

If you are letting small private residential properties the HSE guidance is all that is necessary. Make sure you include a risk assessment for Legionnaires in your overal H&S risk assessment and you will be covered. If you are expecting a letting agent to conduct an annual H&S risk assessment then this should be funded either separately or as an element within the management fee. Adding the HSE recommended checks for Legionnaires should not increase this payment. Obtaining a signature from the landlord that accepts the extend of H&S risk assessment carried out can be obtained within the Agent's terms of business. Make sure the results and actions that arise are conveyed back to the Landlord.

Alex Sammut - ISAC UK Ltd

11:49 AM, 20th May 2015
About 3 years ago

Hi, As a Health and Safety Trainer (and director) for a company that have run professional training courses in industry on the subject of Legionella for over 17yrs we have recently designed and run specific one-day courses in Legionella for landlords and letting agents and have done so for the past 13mths. (7mths of which in conjunction with the RLA)

I have read an number of these articles/blogs and whilst I completely concur with the majority of comments that I have read I thought that I would offer my two pennies worth to try and clear up a number of misinterpretations.

1) There appears to be a lot of misuse of the term 'certificate' with regards to this subject in the Letting industry. I can only deduce that this has come people assuming that as the landlord is required to get a 'Gas safety certificate' that the same must be true for Legionella. This is NOT the case.

The term 'certificate' with respect to Legionella Management means something completely different and is actually talking about water analysis and sampling of water from systems. This is something that we explain in detail to landlords and explain why in the majority of cases (99%) is completely irrelevant for residential properties.

Unfortunately, letting agents and indeed now legionella risk assessment companies are scaremongering by suggesting (or misunderstanding?) that this is needed and is often offered initially as a 'free service' included in the price of the risk assessment.

An 'in' if you like for potentially unnecessary repeat, chargeable, business/sampling.

As a landlord, you are required to have a completed Legionella RISK ASSESSMENT for your residential property. This can come in many formats, depending on the person/company that is completing it. There is NO set format or 'certificate' at the end and can take the form of a report.
Following the completion of the risk assessment there should be what is called a 'Written Scheme of Control' produced, which will be a simple management plan for keeping that water system safe and low risk for its users. The scheme should indeed talk about cleaning and flushing of outlets and shower heads and depending on how you set the plan up may or may not involve other people (such as tenants and managing agents) to fulfil some of the roles included. Consideration to the competence and training/advice that may be required should also be thought about. In other words, simple things such as not telling someone to clean a scaled up showerhead with disinfectant before they have actually scrubbed off the scale! (Legionella bacteria can live in the scale and so if the scale is not scrubbed off will be protected from the disinfectant!)

Who can carry out the risk assessment is determinable by the level of competence that person has in the subject, and indeed in the subject of risk assessment itself. They will need to be able to reasonably foresee both normal and abnormal situations with the water system in the property and with the users themselves. In addition, they will need to be able to recommend suitable and sufficient control measures that are reasonably practicable (including in terms of cost).

2) With respect to whether or not it is a legal requirement in the first place, confusion appears to reign again in the residential letting industry. To clear this up, consider it this way -

Landlords are now explicitly included (as of April 2014) in an industrial Technical Guidance Document called HSG 274 Part 2 (freely downloadable on the HSE website). This document alone is NOT law. However, the document is produced to aid people to actually comply with the law, in the form of an Approved Code of Practice called - L8. An Approved Code of Practice has a special legal status as an individual must be able to prove that they have done something 'equal to or better than' what is being asked. For the residential letting Industry, there is currently no document out there that shows how you can be equal to or better than the current code of practice and thus should be taken as LAW.

In addition, the Approved Code of Practice come directly from the CoSHH Regulations that are indeed a legal requirement themselves and and the CoSHH Regulations ultimately fall underneath the Health and Safety at Work Act 1974 which is definitively law.

Simplistically, this has been a legal requirement ever since 1975 when the Health and Safety at Work Act came out, especially under regulations such as No. 4 which focuses on duties to individuals in premises other than employees. In other words, as a landlord is providing a 'service' by offering a property for money the landlord should be meeting the requirements within this section.

In addition, civilly, a claimant can also use ANY statute law in their case to help prove the balance of probability in proving their loss. So even, if after reading this explanation you still believe that this is not a requirement by law please be advised that a tenant that puts in a claim against a case of ill health resulting from the water supply in the rented property can indeed use these regulations that I have stated above as part of their case. Given that there has been a huge amount of past history with cases of Legionnaires disease from hot and cold domestic systems in industry it shouldn't be too hard for a tenant to prove that the cause was the domestic property if they can also back this up with a water sample taken from the system itself and it was found to have the same strain of the Legionella bacteria in....

...and so in a weird way I have managed to come full circle with my response!?

If anyone out there would like further information, or has further questions, please don't hesitate to reply and I will try my best to answer honestly and truthfully, rather than being one of those scaremongers out there!!! Kind regards Alex 🙂

Neil Patterson

12:21 PM, 20th May 2015
About 3 years ago

Reply to the comment left by "Alex Sammut - ISAC UK Ltd" at "20/05/2015 - 11:49":

Thank you Alex.

Great to have an expert in the community 🙂

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