Legionella risk: landlords' legal responsibilities
There is considerable confusion about landlords’ legal responsibilities regarding the control of Legionella, not least because of misleading advice being circulated to property owners. We thought we’d set the record straight and dispel a few myths to ensure that tenants are kept safe and landlords not taken for a ride!
What does the law say?
Let’s start with the technical stuff (brace yourself for the jargon and acronyms or, if you want to indulge your inner geek, visit our FAQs page or glossary section).
The law is clear: if you are a landlord and rent out a 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.
There are a number of different regulations which relate to the control of Legionella, including the Health and Safety at Work etc. Act 1974 (the HSW Act) and the Control of Substances Hazardous to Health Regulations 2002 (COSHH) and the Management of Health and Safety at Work Regulations 1999 (the Management Regulations).
To save those of us who aren’t lawyers from wading through the small print, the Health & Safety Executive (HSE) helpfully published its Approved Code of Practice (ACoP) in 2013. This was the fourth edition of the snappily-titled L8 document which covers the control of Legionella. The purpose of this leaflet is to help ‘dutyholders’ (which includes employers and those with responsibilities for the control of premises, e.g. landlords) to comply with their legal duties in relation to Legionella.
What do you have to do?
These legal duties include identifying and assessing sources of risk, preparing a scheme to prevent or control risk, implementing, managing and monitoring precautions, keeping records of precautions and appointing a manager to be responsible for others.
It’s worth noting that following the guidance is not compulsory, unless specifically stated in the leaflet, and you are free to take other action. But if you do follow the guidance you will normally be doing enough to comply with the law. If you are prosecuted for breach of health and safety law and it is proved that you did not follow the relevant parts of the Code, you will need to show that you have complied with the law in some other way or a Court will find you at fault.
In short, make sure you’re covered by doing things properly – either by learning how to monitor and manage the risk of Legionella yourself or by working with a professional. The rule of thumb here is competency. We’re dealing with a potentially deadly bacteria so whoever does the risk assessment needs to know their way round a water system and be able to assess the risks and identify hazards.
You’ll need to have a proper paper trail to prove that everything has been done correctly and the risk assessment needs to be repeated at least every two years. If the water or heating system has undergone major work or alterations it will also need to be reassessed.
What you DON’T have to do
We’ve seen a few instances recently where so-called advisors have talked of the need for a ‘Legionella certificate’. There is no legally-recognised certification process and if someone tries to tell you that you need a certificate, they’re wrong! As mentioned above, you just need paperwork to prove that a competent person has carried out a proper risk assessment and that any remedial action has been taken.
You also don’t have to undertake Legionella testing of any kind, unless a high risk has been identified. The majority of domestic properties are low-risk for Legionella, especially if the plumbing system is well-maintained, so would be unlikely to need any bacterial testing to be carried out. Again, don’t be misled by someone trying to sell you a Legionella testing service.
Testing for Legionella should not be confused with temperature monitoring, which is a reliable method for confirming the water system is under control (find out more about this in our article on Risk factors and how to manage them)
Here’s a simple checklist to summarise your legal responsibilities:
- Monitoring the risk of Legionella is part of the legal responsibilities a landlord has for his/her tenant(s)
- The law says that the risk assessment must be carried out by a ‘competent person’. This could be you, your letting agent or a water hygiene professional, but whoever it is needs to understand how the water system in the property works and what the risk factors are for Legionella
- It is strongly advisable that a written record is kept of the risk assessment
- The risk assessment should be repeated at least every two years