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26 April 2016
There is much confusion and debate regarding the interpretation of landlords’ responsibilities when it comes to legionella testing in rental properties. Guidance on the HSE website even appears contradictory in places.
There are certainly some out there who are exploiting the revised L8 ACOP to suggest that new legislation has been imposed on landlords of domestic rented properties for managing and controlling the risks of exposure to legionella bacteria of their tenants.
Guidance on the HSE website says, “This is wrong, the legislation has not changed and misinformation/misinterpretation can impose unnecessary financial burdens on landlords where they are being charged for legionella testing and certificates they don’t actually need.”1
However, HSE do confirm that there is a legal duty for landlords to ensure the safety of their tenants by assessing and controlling the risk of exposure to legionella bacteria despite the fact that Health and Safety law does not require them to produce or obtain any form of ‘legionella testing certificate.’
The main question therefore remains that if there is a confirmed legal duty on landlords to consider, assess and control the risks of exposure to legionella, then how can that be evidenced without any form of assessment being carried out or recorded?
Practical and proportionate steps you can take to comply with your duties
The risks from hot and cold water systems in domestic dwellings are generally low which do not require an in-depth, detailed assessment. Domestic dwellings are considered low risk since daily water usage is inevitable and sufficient to turn over the entire system. An increase in mains fed systems and combi boilers has further decreased the risk since water is not stored. Providing that hot water is kept hot (over 60oC), cold water is kept cold and the system keeps on moving, then risks should be low.
Whilst an in-depth assessment may be excessive, here are some practical steps that can be taken to ensure that the risk remains low:
Tenants should be made aware of the practical steps taken to ensure their safety. In instances where tenants may not occupy the premises for more than four or five days at a time, control measures should be implemented to ensure that the system can be used to maintain water flow to prevent water from stagnating in the system.
Tenants should be advised to ensure that shower heads are cleaned regularly, since showerheads have the means of creating and dispersing water droplets (aerosols) which may be inhaled. Since showers are mostly used frequently, this presents a low risk.
Tenants should also be advised to report any issues with water not heating correctly so that it can addressed quickly.
Advice for letting agents
Letting agents have been accused of scaremongering landlords into having costly assessments carried out. There is no legal requirement to have a legionella test carried out, or for a certificate to be issued. Further, there is no requirement for it to be updated annually like a gas safety certificate.
However, since landlords do have a duty to consider and control the risks, our advice to letting agents is to make a recommendation to landlords to have a person who is deemed competent to carry out a risk assessment on their behalf which can then be documented. For low risk domestic dwellings, we recommend a short assessment form that shows consideration has been given to the risks. This can be carried out by someone suitably competent at the same time as a gas safety check to keep costs down. We advise an opt-out clause which enables landlords who do not wish to pay for an assessment to confirm that they have received the advice but declined to take the letting agent up on their offer to arrange one on their behalf.
This article contains views and opinions, supported by references from HSE website. The views contained in this article do not represent legal advice. You should not rely on its contents solely, and should carry out your own research when determining your legal duties.