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Landlords’ duties in relation to Legionella

The law is clear that if you are a landlord, and rent out your property (or even a room within your own home), then you have legal responsibilities to ensure the health and safety of your tenant(s), by keeping the property safe, and free from health hazards.

Section 3 (2) of the Health and Safety at Work Act 1974 makes provision for relevant health and safety legislation to apply to landlords, to ensure a duty of care is shown to their tenants. The general duties require under section 3 (2) that: ‘It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.’

Landlords, under Section 53 of the same Act, are regarded as being self-employed. Tenants fall into the class of ‘other persons (not being his (sic) employees)’. If you rent out a property, then you have legal responsibilities to ensure that you conduct your undertaking in such a way that your tenants are not exposed to health and safety risks.

The Control Of Substances Hazardous to Health (COSHH), 2002 regulations provide a framework of actions to control the risk from a range of hazardous substances, including biological agents (e.g. Legionella).

These actions include: To identify and assess the risk, and implement any necessary measures to control such risk.   There has been no change to relevant UK legislation since the L8 – The Control of Legionella Bacteria in Water Systems Approved Code of Practice (3rd edition) (ACOP) was first published, in 2001. It is a requirement for landlords of both domestic, and business premises to assess the risks to their tenants from exposure to Legionella.

L8 ACOP was revised and republished in November 2013, and retained the guidance relating to the requirements of the Health and Safety at Work Act 1974, and COSHH, for employers and landlords.

Testing, or sampling for Legionella (sometimes referred to as microbiological monitoring), is not usually required for domestic hot and cold water systems. The testing for Legionella should also not be confused with temperature monitoring, which is a reliable method for confirming the water system is under control.

Health and safety law does NOT require landlords to obtain, or produce, nor does the HSE recognise a ‘Legionella test certificate’.

HSE and Local Authority inspectors do not proactively inspect domestic premises, or ask for evidence that landlords have undertaken a risk assessment. However, if a tenant were to contract Legionnaires’ disease from the water system in their home, the landlord may be liable to prosecution, under the Health and Safety at Work Act 1974. The landlord would have to demonstrate to a court that they had fulfilled their legal duty. For this reason, it is important that they assess and control the risks.

What must landlords do?

For landlords of residential, and small commercial rental properties, the practical and proportionate application of health and safety law is to assess the risk from exposure to Legionella. This will allow them to control of the risk to the safety of their tenants. This does not require an in-depth, detailed assessment.

The risks from hot and cold water systems in most residential settings are generally considered to be low, due to regular water usage and ‘turnover’. A typical ‘low-risk’ example may be found in a small building (e.g. housing unit), with a small, domestic type water system, where daily water usage is inevitable, and sufficient to turn over the entire system.

A simple Legionella assessment may show that there are no real risks, and what risks there are can, and are, being properly managed. In this case, it will conclude that no further action is needed. It is important to review the Legionella assessment, in case anything changes in the system.

Implementing simple, proportionate, and appropriate control measures will ensure the risks remain low. For most domestic systems, temperature is the most reliable way of ensuring the risk of exposure to Legionella bacteria is minimised. In other words, keep the hot water sufficiently hot, the cold water sufficiently cold, and keep it moving.

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