Landlords and letting agents are being warned to comply with HSE legislation on controlling the risks associated with the water-borne bacteria, Legionella, or risk facing fines.

What is Legionnaires Disease?
Legionella is a bacteria, which is often found naturally within aquatic environments but become a risk when conditions are such that allow the bacteria to proliferate rapidly. In susceptible individuals, legionella can cause Legionnaires’ disease, which is a potentially fatal form of pneumonia. It is therefore essential that a risk assessment and water management regime be in place to minimise the risk of legionella to individuals who may be exposed to contaminated water systems.
Legionella bacteria are widespread in rivers, lakes and water systems where the temperature of the water is such as to encourage growth of the bacteria, e.g. a hot water system. People can catch the disease by inhaling small droplets of water which may be suspended in the air and contain the bacteria. Stored and re-circulated water is a particular risk.

The Health and Safety Executive have produced two guides following an Approved Code of Practice:
1 – Legionnaires’ disease: a brief guide for duty holders – http://www.hse.gov.uk/pubns/indg458.pdf
2 – Legionnaires’ disease: The control of legionella bacteria in water systems. http://www.hse.gov.uk/pubns/priced/l8.pdf
These documents spell out the legal requirements for landlords and managing agents to help them ensure that the tenant’s risk from exposure to legionella from water systems in residential rental property is safely controlled.

While Legionnaires’ disease is relatively rare (there were 359 reported cases in England Wales during 2010), it is serious and is fatal in 12% of the cases. The number of actual cases of legionella however, is estimated to be at least 10 times this figure, due to misdiagnosis by GP’s.

What is the Current Law?
In November last year, the HSE issued a revised version of their Approved Code of Practice, “Legionnaires’ disease: the control of legionella bacteria in water systems” (L8) which sets out guidelines and legal requirements for employers and duty holders in managing and minimising the risks associated with legionella within all water systems.

The actual legislation around legionnaire's disease has been around for some time, but it only applied to water systems over 300 litres in capacity (generally only found in commercial or industrial buildings). However, the revised version above, removed the 300 litre limit entirely, and brought every landlord and letting agent of private rented property under the legislation along with local authorities, universities, housing associations (including housing companies, charities, hostels, hoteliers, B & B’s, guest houses, holiday camp owners & caravan/camping sites owners (including fixed caravan sites) regardless of the size or complexity of the hot and cold water system. This means ALL water & heating systems, including combi & electrical systems have to be checked.

The Health & Safety at Work Act 1974 means landlords and letting agents are identified as “duty holders” within the Technical Guidance that accompanies the ACOP L8. This means they have a duty of care to ensure the safety of all persons using their premises. The Management of Health & Safety at Work Regulations 1999 imposes a duty to make suitable & sufficient assessments of potential risks and the Control of Substances hazardous to Health regulations 2002 provides a framework of actions designed to control the risks of hazardous substances including biological agents such as legionella.
As duty holders “they have a duty to assess the risk from exposure to legionella to their staff, residents, guests, tenants and customers by implementing appropriate control measures”. The onus is now clearly on the duty holder for making key decisions about the frequency and necessity for risk assessments. This means that the duty holder must have knowledge, understanding and competency to make these decisions and training for duty holders and their responsible persons, now becomes more crucial than ever before”.

This becomes essential in residential buildings, where vulnerable people may be at risk, such as retirement flats, or where the accommodation is provided specifically for a group who may be susceptible to legionella. Letting agents and landlords are obliged by law to carry out risk assessments for legionnaire’s disease, and if necessary, take action.

Legionella is now a high profile issue. The HSE are taking the risks associated with legionella bacteria and Legionnaires’ disease very seriously. It is becoming very active in this area & is increasing the number of criminal prosecutions against persons & businesses failing to adhere to the law. As a society we are becoming more accustomed to litigation, prosecutions & personal injury claims can become eye-wateringly expensive & in extreme cases could lead to imprisonment. The penalties are harsh; prosecution on summary conviction of failing to comply with HSE law can result in a fine of £20,000 per breach & 12 months in prison. If a case is deemed to be serious enough & warrants being referred to Crown Court, the judge now has the power to impose an unlimited fine & up to 2 years in prison.
Be aware, you do not need to have an outbreak of legionella to fall fail of the Law, by not having a current risk assessment in place still means you can be prosecuted & fined!

Think it won’t happen to you, Think Again!!

The most recent prosecution in the Midlands occurred from using a shower off a mixer tap on a bath fitting which was not in regular use. The bacteria colonized on the scale within the showerhead itself & simply transferred through the steam vapour, which was inhaled whilst in use.

A landlord in Devon was faced with bills of more than £40,000 to repair a contaminated property in order to prevent legionnaire's disease spreading even further, whilst a social landlord was prosecuted and fined £12,000 following an outbreak which led to one resident being hospitalised. The Magistrates Court heard that a risk assessment had been carried out in 2006 but a number of problems found with the water system were not addressed.
(A point of note: Since we have been carrying out Legionella Risk Assessments, we have found approximately 22% of properties tested required a recommendation to be addressed & of those, 40% of them had a high risk, with potentially serious health risks needing to be addressed immediately!)

Who is responsible?
Where a property is under full management by a professional agent, then clearly the agent has responsibility for meeting these legal requirements. However, where the landlords is managing the property him or herself, then the landlords takes on that responsibility along with all the other legal requirements such as annual gas checks, electrical testing etc.

Clearly, Houses in Multiple Occupation (HMOs) pose a greater risk here and the “responsible person” the person who has the duty to manage the property is obliged to carry out a risk assessment for this risk as well as for general and fire safety under The Management of Houses in Multiple Occupation (England) Regulations 2006. http://www.legislation.gov.uk/uksi/2006/372/pdfs/uksi_20060372_en.pdf
However, landlord or individual buy-to-let properties are also affected by this. Although an individual house our flat generally poses no greater risk for legionella than an owner occupied property, unless there are unusual circumstances, nevertheless there is still a risk which must now be addressed by all landlords and agents.

The guidance specifies bi-annual risk assessments by “ a competent person” & insists that landlords and agents keep records of these for at least five years. A competent person under HSE guidance is someone with the necessary skills, knowledge & experience to manage health & safety, including the control measures of legionella & current water regulations. All ACoP L8 certified persons are classed as competent persons.

Landlords and agents should be aware that legionella bacteria could multiply in hot or cold water systems and water storage tanks. The bacteria can be spread via showers and taps, especially if they have not been used for some time. The risk assessments must assess the risk and identify potential sources of exposure, followed by, if necessary, any steps to prevent or control any of the identified risk.

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 tanks for example, infrequently used outlets, showers and air conditioning units, debris in water systems, and thermostatic mixing valves should be checked and corrective action taken where necessary.
The other side of the coin is assessing the vulnerability of people who may be at risk. Landlords and agents need to identify this in their risk assessments.

Tenants who are older than 45 years, smokers and heavy drinkers, those suffering chronic respiratory or kidney disease and anyone with an impaired immune system is at greater risk of infection.

Safeguards may involve disinfecting water systems, cleaning shower heads, servicing air conditioning units, removing stagnant water pools and water tanks from systems, insulating pipe work and keeping water cisterns properly covered and free of debris.
Landlords and agents should issue tenants with notices advising them about these risks and how to combat them by running water off and cleaning showerheads regularly.

It all sound very onerous on landlords or agents but these risk assessment are usually straightforward and not as bad as they seem.

Most small systems only need a risk assessment and no further action required, but having the evidence available that the risk assessment has in fact been carried out is vitally important It will not only reduce the risk of contracting legionella, it will substantially reduce the risk of prosecution or a personal injury claim against you.

If you have any other queries regarding any of the above information, please do not hesitate to contact Essex Energy Surveys Ltd.



RLA Legal Update Article RLA Guidance on Legionnaires’ Disease for tenants and
residents of rented domestic accommodation



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