There has been significant confusion over the years about domestic rented properties needing a Legionella risk assessment and indeed if one is needed at all. In brief, all rented properties need a Legionella risk assessment. The confusion is due to a misunderstanding of the requirements of the HSE's ACOP L8, the actions of several letting agents and landlord groups. The Health & Safety Executives "Myths Buster Challenge Panel" issued their findings on this subject under case number 357. As well as the HSE's requirements to have a Legionella risk assessment in place more and more local authorities are running licensing schemes for landlords to ensure housing standards. The schemes are generally set up using the requirements of the Housing & Planning Act 2016 and cover health & safety.
In 2013 the 4th Edition of the ACOP L8 was released. Previously to the 4th edition there was an artificial 300 litre volume limit for hot & cold-water systems which effectively excluded domestic rented properties from the ACOP L8. The limit existed because it was felt that there was little to no risk of Legionella developing in smaller water systems. The 4th edition of the ACOP L8 removed the artificial 300 litre limit and for the first time brought smaller domestic systems under the scope of the ACOP L8. This was done because research has shown that Legionella can exist and grow in smaller water systems. In support of the change the HSE released a document called "Essential Information for Providers of Residential Accomodation".
Under the Housing & Planning Act 2016 councils can now issue a civil penalty against landlords of up to £30,000 for not meeting the required housing standards including health & safety. The civil penalties were introduced in April 2017 as an alternative to councils bringing criminal prosecutions. Local authorities are then allowed to keep the fines. Some authorities are also considering introducing licensing schemes under the new legislation. The act also allows for councils to issue Banning Orders & Rent Repayment Orders.
A Legionella Risk Assessment is the first step to ensuring compliance with the HSE's ACOP L8 and is a legal requirement under health & safety law. Risk assessments need to be carried out by someone who is competent to determine the possible risk from Legionella bacteria. Our risk assessors are certified by Trust Mark who work with Trading Standards. Trust Mark is the only Government Endorsed Competent Person Scheme in the UK and operates under Government Licence from the Department of Business, Energy and Industrial Strategy.
Simply not having a risk assessment or failing to have one carried out competently could be seen by the courts as a breach of health & safety law. A Legionella risk assessment is only valid for a period of up to 2 years which is the maximum allowed by the HSE's ACOP L8, after 2 years a new risk assessment needs to be carried out. During the 2 year period the assessment needs to be regularly reviewed. For that reason, our risk assessments come with a built-in review log and document control clearly stating the assessment date, when the assessment expires and how long the assessment needs to be retained for to meet the requirements of the ACOP L8.
Why choose Water Wise to carry out your Legionella Risk Assessment?
As well as being Trust Mark certified our risk assessors are also City & Guilds qualified and certified by Stroma.
Our assessment team also includes City & Guilds and NVQ Level 2 & 3 qualified plumbers who hold accreditation or membership with the CIPHE, Water Management Society, Engineering Council, Water Safe Registered (a requirement of NHS Estates) and are Water Industry Approved holding "Approved Contractor" status under the Water Supply (Water Fittings) Regulations 1999.
The Confusion About Legionella Risk Assessments
The confusion occurred because of letting agents who contacted landlords advising them that they have a legal or statutory requirement to test for Legionella which is not the case. This has been an industry wide problem because of misinformation given to letting agents through their governing and training bodies. The way this information has been presented has led letting agents to believe that a test certificate is needed in the same way a Gas Safe certificate is needed. There is NO automatic or legal requirement to test for Legionella unless identified by the risk assessment.
In response landlord groups such as the NLA replied (through press releases etc.) that there is no need for landlords to do anything and that nothing has changed. Again, this is not correct as there had been a documented change, domestic rented properties are now under the scope of the ACOP L8. However, landlord groups were addressing the claim that landlords need to test for Legionella and did not make it clear that a risk assessment is now required. Prior to the release of the 4th edition in 2013 domestic rented properties did not need a Legionella risk assessment.
The comment is often made that nothing has changed because the law has not changed. It is correct the law has not changed but the ACOP L8 is not a law, it supports the requirements of other laws in relation to Legionella. The Code of Practice has a special legal status. If you are prosecuted for a breach of health and safety law, and it is proved that you did not follow the relevant provisions of the Code of Practice, you will need to show that you have complied with the law in some other way or a Court may find you at fault.
A Written Legionella Risk Assessment
To assess the risk correctly a physical inspection of the hot and cold-water system needs to be carried out and measured against the performance criteria of the ACOP L8. A risk assessment needs to be written based on the inspection. There are some claims that a "written" risk assessment is not needed and you only need to show you have "considered the risks" of Legionella. Whilst this is partly true, we must also consider that if there is an outbreak of Legionnaires Disease how does a landlord show they have considered the risk of Legionella? The answer is simple, it is proved by a 'written' and "dated" Legionella risk assessment.
To carry out a domestic Legionella risk assessment you need to be competent to assess the risk. This means that landlords can carry out their own risk assessments if they feel they are technically competent. There is an issue with this as the HSE do not state what " technically competent" means in terms of Legionella and landlords could leave themselves liable if they do not assess the risk correctly.