HSE guidance continues to require landlords to assess and control the risk of exposure to Legionella, but it does not require a routine annual Legionella test certificate or an annual risk assessment in every domestic property. The assessment should be proportionate to the property and reviewed when there is reason to think it is no longer valid, for example after changes to the water system or a period of vacancy. Responsibility between a landlord and managing agent depends on the management arrangements and contract, so it should not be assumed that appointing an agent automatically transfers every legal duty.
What is Legionella?
Legionnaires’ disease is a potentially fatal form of pneumonia caused by the inhalation of small droplets of contaminated water containing Legionella. All man-made hot and cold water systems are likely to provide an environment where Legionella can grow.
The law and you
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 by keeping the property safe and free from health hazards.
Section 3(2) of the Health and Safety at Work Act 1974 (HSWA) 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 HSWA are regarded as being self-employed and tenants fall into the class of ‘ other persons (not being his employees) ’.
Who is responsible?
Where a property is managed by a professional agent, the management agreement should make clear who will carry out the practical risk assessment and control measures. Landlords should not assume that appointing an agent automatically removes their own legal responsibilities.
Houses in Multiple Occupation (HMO’s) pose a greater risk and the ‘responsible person’ is obliges to carry out a risk assessment for this risk as well as for general and fire safety.
Testing (or sampling) the water system
Testing or sampling for Legionella is not usually required for domestic hot and cold water systems, but only in very specific circumstances. Health and safety law does not require landlords to obtain or produce a ‘Legionella test certificate’.
Assessing the Risk
HSE guidance requires a suitable and sufficient assessment of the risk. It does not prescribe an annual assessment for every domestic property. The assessment should be reviewed when there is reason to think it is no longer valid or circumstances have changed. The risk assessments must assess the risk and identify potential sources of exposure, followed by, if necessary, and steps to prevent or control any of the identified risks.
A risk assessment involves assessing whether conditions are right for bacteria to flourish. The greatest risk is where water is present at temperatures between 20C and 45C. Stagnant water, in takes for example, infrequently used outlets, showers and air conditioning units, debris in water systems, and thermostatic mixing valves should be checked an corrective action taken where necessary.
Useful UK legal and solicitor links
- HSE: Legionella and landlords responsibilities
- HSE: Legionnaires disease approved code and guidance
- Anthony Gold: Landlord and agent regulation solicitors
This article provides general information only and is not a substitute for legal or tax advice on a specific case.
