Be A Better Landlord ~ 4 ~ Electrical checks and Legionella RA

How to Rent for Landlords: electrical and legionella, two landlord’s checks that get overlooked…

Electrical checks and legionella risk assessments – maybe this is because they are not specifically mentioned in the Deregulation Act 2015, there are so many other checks required which are easier to do, have greater awareness around them. Out in the field when asked landlords often respond saying, ‘its not a HMO’ or ‘I don’t have a water tank in my property’.  The instances of non-compliance with the legislation that we might hear about is when tragedy occurs and tenants are hurt or injured in circumstances where routine checks and maintenance could have prevented.

Electrical Safety ~ The legislation: 

• Landlord and Tenant Act 1985 is the main legislation for landlords in England and Wales. Key points can be found in: Section 8. Implied terms as to fitness for human habitation
  •  The property should be fit for people to live in at the beginning of the tenancy (subsection (1)(a)).
  • The property should be kept in a fit state for people to live in during the tenancy (subsection (1)(b)). Section 11.
  • Repairing obligations in short leases This places a duty on landlords to keep in repair and proper working order the:
    •  Installations in the property for the supply of water, gas and electricity, and for sanitation (subsection (1)(b)).
    • Space heating and heating water (subsection (1)(c)).
• Occupiers’ Liability Act 1957 and Occupiers’ Liability Act 1984 – give landlords a duty of care for anyone visiting their property. In short, a landlord could be prosecuted if someone is injured on their land or premises – regardless of whether the visitor is there lawfully (the 1957 Act) or trespassing (the 1984 Act.)
• Building Regulations for England and Wales (2005) were amended to include Part P, which covers electrical safety in dwellings. This means that all electrical installation work undertaken in a home in England or Wales must, by law, comply with Part P of the Building Regulations. This requires ‘reasonable provision… in the design and installation of electrical installations …to protect persons operating, maintaining or altering the installations from fire or injury’
• Management of Health and Safety at Work Regulations 1999 (Management Regulations) places an obligation on the employer to actively carry out a risk assessment of the work place and act accordingly.

Landlords are required by law to ensure: That the electrical installation in a rented property is safe when tenants move in and maintained in a safe condition throughout its duration, they must make sure:

• the electrical system is safe, for example sockets and light fittings
• all appliances they supply are safe, for example cookers and kettles

The landlord is always responsible for repairs to:

• the property’s structure and exterior
• basins, sinks, baths and other sanitary fittings including pipes and drains
• heating and hot water
• gas appliances, pipes, flues and ventilation
• electrical wiring
• any damage they cause by attempting repairs

Penalties

~ Invalid insurance
~ The standard penalty is £5,000 and/0r 6 months imprisonment

Legionella Risk assessment ~ The Legislation:

Health and Safety at Work Act 1974 (HSWA), Control of Substances Hazardous to Health Regulations 2002 (COSHH), L8 Approved Code of Practice (ACOP)

Landlords are under a duty to ensure that the risk of exposure to tenants, residents and visitors by Legionella is properly assessed and controlled. Section 3(2) of the  HSWA makes provision for relevant health and safety legislation to apply to landlords to ensure a duty of care is shown to their tenants’ with regard to their health and safety.  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 HSWA are regarded as being self-employed and tenants fall into the class of “other persons (not being his employees)”.  If you rent out a property, you have legal responsibilities to ensure you conduct your undertaking in such a way that your tenant(s) are not exposed to health and safety risks.

The provides a framework of actions to control the risk from a range of hazardous substances, including biological agents (eg Legionella) – to identify and assess the risk, and implement any necessary measures to control any risk.

There has been no change to UK legislation. Since the (ACOP) was published in 2001, there has been a requirement for landlords of both domestic and business premises to assess the risks from exposure to Legionellato their tenants.

L8 Approved Code of Practice (ACOP) was revised and republished in November 2013 and retained the guidance on the requirements of HSWA and COSHH for employers AND those with responsibilities for the control of premises including landlords (L8 ACOP, paragraphs 1 and 2).  It applies to the control of Legionella bacteria in any undertaking involving a work activity AND applies to premises controlled in connection with a trade, business or other undertaking where water is used or stored and there is a reasonably foreseeable risk of exposure to Legionella bacteria (L8 ACOP, paragraph 22).

Health and Safety law does not require landlords to produce or obtain, nor does HSE recognise, a ‘Legionnaires testing certificate’. However, There is a legal duty for landlords to assess and control the risk of exposure to legionella bacteria,  and thereafter maintain control measures to minimise the risk. Most rented premises will be low risk but it is important that risk assessments are carried out and control measures introduced.

Legionnaires’ Disease is a pneumonia like illness caused by the Legionella bacteria and can be fatal. The infection is caused by breathing in small droplets of water contaminated by the bacteria. The disease cannot be passed from one person to another. Legionella bacteria are found in the natural environment and may contaminate and grow in water systems, including domestic hot and cold water systems. They survive low temperatures and thrive at temperatures between 20 – 45°C if the conditions are right. They are killed by high temperatures at 60°C or above.

http://www.hse.gov.uk/legionnaires/legionella-landlords-responsibilities.htm

What you must do

The practical and proportionate application of health and safety law to landlords of domestic rental properties is that whilst there is a duty to assess the risk from exposure to Legionella to ensure 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 owing to regular water usage and turnover. A typical ‘low risk’ example may be found in a small building (eg housing unit) with small domestic-type water systems, where daily water usage is inevitable and sufficient to turn over the entire system; where cold water is directly from a wholesome mains supply (no stored water tanks); where hot water is fed from instantaneous heaters or low volume water heaters (supplying outlets at 50 °C); and where the only outlets are toilets and wash hand basins.

A simple assessment may show that there are no real risks and are being properly managed and no further action is needed.  It is important to review the assessment in case anything changes in the system.

Implementing simple, proportionate and appropriate control measures will ensure the risk remains low.  For most domestic hot and cold water systems, temperature is the most reliable way of ensuring the risk of exposure to Legionella bacteria is minimised ie keep the hot water hot, cold water cold and keep it moving.  Other simple control measures to help control the risk of exposure to Legionella include:

• flushing out the system prior to letting the property
• avoiding debris getting into the system (eg ensure the cold water tanks, where fitted, have a tight fitting lid)
• setting control parameters (eg setting the temperature of the hot water cylinder (calorifier) to ensure water is stored at 60°C)
• make sure any redundant pipework identified is removed.

The risk is further lowered where instantaneous water heaters (for example combi boilers and electric showers) are installed because there is no water storage.

What your tenant needs to know

Tenants should be advised of any control measures put in place that should be maintained e.g. not to adjust the temperature setting of the calorifier (water heater), to regularly clean showerheads and tenants should inform the landlord if the hot water is not heating properly or there are any other problems with the system so that appropriate action can be taken.

Where showers are installed, these have the means of creating and dispersing water drop

lets (aerosols) which may be inhaled causing a foreseeable risk of exposure to Legionella.  If used regularly (as in the majority of most domestic settings) the risks are reduced but in any case, tenants should be advised to regularly clean and disinfect shower-heads.  Instantaneous electric showers pose less of a risk as they are generally cold water-fed and heat only small volumes of water during operation.

Additional actions for properties left vacant

It is important that water is not allowed to stagnate within the water system and so there should be careful management of properties left vacant for extended periods (eg student accommodation left empty over the summer vacation).  As a general principle, outlets on hot and cold water systems should be used at least once a week to maintain a degree of water flow and minimise the chances of

stagnation. To manage the risks during non-occupancy, consideration should be given to implementing a suitable flushing regime or other measures such as draining the system if it is to remain vacant for long periods.

Who can assess the risk?

In most cases, the actions landlords need to take are simple and straightforward so compliance does not need to be burdensome or costly.  Most landlords can assess the risk themselves and do not need to be professionally trained or accredited; but if they do not feel competent, or inclined to do so, they can arrange for someone who is to do it on their behalf.  Most landlords are able to understand the set of risks of running a hot and cold water system in a way that provides the above conditions; and would also be able to implement cheap, simple and effective physical control measures required to minimise the risk of the system becoming colonised with Legionella and other microorganisms.

Testing (or sampling) the water system for Legionella

Testing or sampling for Legionella (sometimes referred to as microbiological monitoring) is not usually required for domestic hot and cold water systems, but only in very specific circumstances (HSG274 Part 2, para 2.120). Testing for Legionella should 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, produce nor does HSE recognise a ‘Legionella test certificate’.

Keeping a record of the assessment

Landlords are not necessarily required to record the findings of the assessment (this is only a statutory duty for employers where there are five or more employees), but they may find it prudent to keep a record of what has been done for their own purposes.

Reviewing your risk assessment

The law does not prescribe that the risk assessment be reviewed on an annual or biennial basis. It is important to review the assessment periodically in case anything changes but where there are difficulties gaining access to occupied housing units, appropriate checks can be made by carrying out inspections of the water system, for example, when undertaking mandatory visits such as gas safety checks or routine maintenance visits.

Are domestic properties proactively inspected?

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 HSWA, and would have to demonstrate to a court that they had fulfilled their legal duty, so it is important that they assess and control the risks

(see www.hse.gov.uk/press/2010/coi-e-05.htm ).

Penalties

~ Invalid insurance
~ The standard penalty is £20,000 0r 12 months imprisonment for a minor breach, or an unlimited fine and up to 2 years imprisonment for a major breach

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Be A Better Landlord – property professionals offering ‘in the property’ check-in with your tenant:

• Book an electrical check or legionella risk assessment with us
• We will provide the tenant with clear instructions on how to maintain and the frequency that this is required both verbally and written
• We will document by way of a signed receipt from the tenant that this has been carried out, along with all the other landlord’s duties required by Deregulation Oct 2015 and all the other relevant legislation that is applicable

 Contact us for details on how our check-in can work for you!