There has been a lot of confusion in the last few 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 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.
We offer several types of risk assessment for landlords. Our cheapest option is our DIY template download or, if you prefer, our next level of service allows for your assessment to be double checked by our Trust Mark certified risk assessors. If you are in an area that we cover, and you are uncertain about doing your own risk assessment we can arrange for one of our assessors to carry out the risk assessment for you from £75.00.
If you own a significant number of properties then section 2.146 of the HSE's ACOP L8 allows for a representative risk assessment to be carried out for housing associations, local authorities and landlords who control several properties of similar design, this refers to domestic only properties.
As a part of our service we will help you group your housing stock into "representative groups" based on location, water heater type and general design. We will then agree with you how many properties need to be visited and put a plan of works in place to carry out the required inspections.
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. There is no limit to how many fines can be issued, and Landlords could be hit with multiple fines at the same time. Under health & safety law landlords can be fined for simply not having a risk assessment in place.
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.