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Muddy Waters: Your Legionella Duty

View profile for Ryan Heaven
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The Health and Safety Executive’s (HSE) decision to include domestic water storage units in their scope for Legionella risk assessments has resulted in massive confusion as to what the duty actually is for managing agents and landlords. Previously only large commercial premises were required to be checked, but as Legionella can manifest in even the smallest units it made sense for all ‘at risk’ properties to be tested. However all the literature surrounding the topic refers to industrial/commercial units and it does not give specific steps for letting agents/landlords to follow which further muddies the waters.

This article will hopefully resolve your concerns about Legionella risk assessments. The duty is similar to gas safety checks in that it is mandatory for landlords. One source of confusion has been that whilst gas safety checks were introduced by parliament via The Gas Safety (Installation and Use) Regulations 1998, the Legionella risk assessment has simply been a change of policy by the HSE. But it is crucial to realise that failure to perform a risk assessment carries similar punishments to failure to get a gas safety certificate. Just because the duty has not been passed through parliament, it does not make it any less of a duty.

At this stage it is not known what the punishments will be, and the HSE have purposefully not shown their hand as to the level of punishment they have in mind once they do (eventually) catch and prosecute someone. Once someone has fallen foul of the HSE you can bet that everyone will know about it!

Who can perform a risk assessment?

The duty to risk assess the property is ultimately the landlords; however this duty can be delegated to the managing agent, particularly in fully managed properties. Managing agents should take a commercial decision as to whether they want to offer a risk assessment service on let only properties for an additional fee as there would likely be a market for this, but of course the managing agent must consider whether they will also continue to offer the service when the initial risk assessment expires and also what their legal exposure will be. If managing agents are confident in their ability to risk assess then it could be lucrative.

The duty to risk assess cannot be passed onto the tenant, however they can and should be made aware of certain practices such as the importance of regularly cleaning shower heads and flushing the system through after they have been away from the property for a long period of time.

The landlord/managing agent carrying out the risk assessment must be a ‘competent person’ according to the HSE. The definition is quite loose, but the general idea is that any person can be a ‘competent person’ if they have read all the HSE literature regarding Legionella. This literature is available on the HSE website, link below. What this means is that you do not need to employ a professional contractor to risk assess all of your properties. The majority of your properties will not require any more than a basic risk assessment, but if this risk assessment spots some problems then it may be worth employing a contractor for a more bespoke job.

It is important to remember that it is nearly impossible to ensure that tenants are at zero risk of Legionella infection. If a Legionella outbreak occurs in your property, but you have carried out risk assessments and genuinely did not believe there to be any proportionate response required then it is unlikely that the HSE will prosecute. Remember, you are simply trying to prevent habitable conditions for Legionella growth, not wipe it out entirely.

What should be in the risk assessment?

The HSE literature provides guidance on the types of things that must be looked at (excess/unnecessary plumbing – also known as ‘dead ends’, temperature of water at the point of delivery) so a competent person will be aware of what they have to look out for. Ultimately until a person is prosecuted for breaching these guidelines and a court advises on what the minimum duty should be, we are still in dark, but I would urge all landlords/managing agents to err on the side of caution at this stage – no one wants their name to be forever enshrined as case law!

A risk assessment, once carried out must be kept for five years. Risk assessments must be carried out every two years or whenever the water system changes (for example, a new boiler is installed).

Dutton Gregory provide a template risk assessment form for Legionella which encompasses the HSE’s duties which is available at £45 plus VAT. Contact letlaw@duttongregory.co.uk or ring 01962 624 333 and ask for a member of the Landlord and Tenancy team for details.

Dutton Gregory also provide a telephone helpline service to letting agents who require on demand legal assistance. An annual subscription costs £175 plus VAT per annum and can cover your entire office so that any member of staff can call for advice. If your firm has multiple offices then a price can be negotiated to cover all of your branches. If this service interests you then please contact letlaw@duttongregory.co.uk or ring 01962 624 333 and ask for a member of the Landlord and Tenancy team for details.

HSE website