In November 2013 the Health & Safety Executive released the 4th edition of the Approved Code of Practice for the Control of Legionella Bacteria in Water Systems commonly called ACOP L8. The code of practice has been released by the HSE with the consent of the Secretary of State. It gives practical advice on how to comply with the law. If you follow its advice you will be doing enough to comply with the law in respect of those specific matters on which the code gives advice. 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.
Legionella is a bacterial agent naturally found in soils and composts. The bacteria is washed into water systems where it can grow. Legionella thrives in conditions of between 20c to 45c. When it is dispersed into the air the bacteria can be breathed in and cause a serious lung infection which can be fatal.
The HSE's ACOP L8 Supports the Requirements of
The HSE have also issued "Technical Guidance" documents HSG 274 & 282.
HSG 274 Parts 1, 2 & 3
Previous to the 4th edition of the ACOP L8 HSG 274 was known as part 2 of the ACOP L8. The technical guidance was separated from the ACOP L8 and split into three parts to avoid confusion and to prevent measures being misapplied. In the past service providers who were not technically competent were applying measures designed for cooling systems to hot & cold-water systems and vice versa, unfortunately despite amending the technical guidance many service providers are still not applying the correct measures. For example, using Dip Slides to test hot & cold water when they should only be used in cooling systems and using testing systems that are not UKAS accredited.
The keys points of the HSE's ACOP L8, HSG 274 & HSG 282 are that;
A range of approved guidance documents have been issued for the assessment, control & prevention of Legionella. For example, as well as ACOP L8, HSG 274 and HSG 282 issued by the HSE the Department of Health have issued HTM04-01 and the Ministry of Defence have also issued their own guidance. These guidance documents are "approved" guidance documents giving them a legal standing in court.
Other guidance has also been released which is not approved, does not have a legal standing and Duty Holders need to understand the difference. Most guidance which is not approved is issued by profit making businesses who charge a fee, whereas approved guidance is normally free. It is important that Duty Holders ensure work is carried out using approved guidance to ensure the correct standards are met.
One major issue is the training provided by the organisations who have also released their own guidance documents. The training these organisations deliver is often designed to promote and sell their own guidance documents and as a result takes Duty Holders away from the requirements of the approved guidance.
It is our experience that when work is carried out by service providers using guidance that is not approved the quality of that work is often to a poor standard, raises costs and fails to identify significant risks.
The first point that Duty Holders need to understand is that they are responsible for any health & safety failures. Secondly, that unlike gas where there is a regulator such as Gas Safe there is no regulatory body for the Legionella industry and finally that the HSE do not state competency requirements for Legionella, they only state that the Duty Holder needs to ensure that those involved are "technically competent" and this includes contractors as well as their own staff. Any person employed by the Duty Holder should at least receive regular training. Any external contractor should have a specialist qualifications and knowledge.
Ensuring work is carried competently is important. We recently worked with a customer who had a risk assessment carried out by a national general health & safety services provider. We were asked to provide a quote to carry out the works recommended in the risk assessment. On reading the assessment and during a site visit we found a number of issues that caused us concern and that were missed in the risk assessment. The issues were obvious to anyone with a minimal understanding of the risks of Legionella and included missing 14 air source heat pumps which include evaporative condensers, 3 industrial pressure washers, fan heaters which include heat exchangers, dead legs, broken or out of use water heaters and unused expansion vessels which were still connected to the mains supply. All of which presented either an increased risk of bacterial growth or of passing on any bacteria. These significant issues would have left our customer, employees and the public at serious risk if we had not identified them.
Competent Person Schemes and Pre-Qualification Websites
The HSE do suggest using a service provider who is a member of scheme that uses a code of conduct for suppliers and uses the Legionella Control Association (LCA) as an example. The HSE also confirm that codes of conduct do not have a legal status and only give an indication of standards of service. It is important to note that the HSE do not recommend or endorse the LCA or any other such scheme.
So how do you ensure competency, especially if there is no overriding competency level or regulator. One answer maybe to use a "pre-qualification" website such as Construction Line or Checkatrade for example but, they will have the same problem, how do they ensure competency if there is no set competency level? And, as a profit-making business their priority is making money which they do by signing up as many service providers as possible who will then pay a fee to advertise through their website. And remember, the competencies required are dependent on the required tasks which can be different for every site.
We use a not for profit scheme to demonstrate our competency to our customers as it removes any question of money being a motivating factor. Trust Mark is the only government endorsed competent person scheme in the UK and they also use a code of conduct for suppliers just like the LCA and as recommended by the HSE. Trust Mark also work with Trading Standards to ensure service providers are competent.
UKAS Accredited Services
UKAS is recognised as an accreditation body. The HSE's ACOP L8 requires that all water samples be tested by a UKAS accredited testing services. This is the only requirement in the ACOP L8 to use a UKAS service.
Some service providers are advertising that they supply UKAS accredited risk assessments. There is no requirement to use UKAS to accredited risk assessments and this does not ensure the competency of those carrying out the assessment. Part of the UKAS process is to inspect water systems against the requirements of the Water Regulations. This inspection is not part of the HSE's ACOP L8. Only level 3 qualified plumbers who have been certified under the water regulations should be carrying out this level of inspection.
Unfortunately we have found a significant number of service providers paying for risk assessors to sit water regulation exams without the relevant prerequisite qualifications and competencies and then carrying out inspections they do not have enough experience or knowledge to carry out.