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Sunday 3rd May 2015

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21:32 PM, 3rd May 2015, About 6 years ago

Legionella risk assessment update please

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’?... Read More