News Bulletin ACOP L8 HSG274: Understanding Landlord and Tenant Cooperation

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2 The HSE reissued the ACOP L8 in 2014 and as part of the Legislation update, there is now an explicit requirement that where there is a shared responsibility for water services i.e. in the instance of Landlord and Tenant occupied buildings, that all parties must co-operate to manage the risk of legionellosis. Our consultants have designed this news bulletin to provide clarification on the different property types and scenarios in which Landlord and Tenant cooperation is required for the responsibility of shared water services. If you require any advice on your responsibilities or Landlord/Tenant cooperation, please contact our experienced team of consultants: hello@s2partnership.co.uk Call: +44 (0) Page 1 of 9

3 Introduction The HSE reissued the ACOP L8 in 2014 and as part of the Legislation update there is now an explicit requirement that where there is a shared responsibility for water services i.e. in the instance of Landlord and Tenant occupied buildings, that all parties must co-operate to manage the risk of legionellosis. This does not mean that the Landlord is responsible for the Tenants water systems but it is required that they cooperate. The most effective way for the Landlord to show that they are complying with this duty is to inform the Tenants that they must have a risk assessment and provide information about Legionella. As landlords or managing agents you may have a wide variety of property types that you are responsible for, and the levels of involvement by yourselves will vary across these properties depending on the terms of the particular lease and the type of property. On a very basic level there can be considered two types of property; commercial and residential. The advice below has been put together to try and categorise the different property types and scenarios further, to give some guidance as to what level of Landlord/Tenant co-operation would be required in each situation and ultimately where liability might lie if failings of either party were to lead to an outbreak of Legionnaires disease. Page 2 of 9

4 Cooling Towers This guidance is to try and help provide clarification with regard to hot and cold water services in commercial/residential environments, but it is worth highlighting how these two connected themes of cooperation and liability played out in the Barrow outbreak in 2002 the largest Legionella outbreak in this country to date. The oft used legal phrases Duty of Care and Reasonably Practicable are very apt in this and in many other situations when trying to assess whether enough has been done to manage the risk and reduce the liability. The advice below cannot provide an answer for every situation/scenario and it will still be required that the Responsible Person will need to exercise thought, care and due diligence when trying to determine whether further action is required to manage and control Legionella bacteria at any particular site or in any particular situation/scenario. In the Barrow case where 7 people died following the failings of the management of the water treatment of a cooling tower at the Forum 28 Arts Centre, which was owned and managed by Barrow Borough Council, the contractor Interserve were fined 125,000 for their part in allowing the outbreak to occur. The council were also fined 125,000 and so in effect, the judge placed equal liability on both parties for their failings. This was despite the fact that Interserve technically did everything they were contracted to do by the council. Interserve were responsible for the management and maintenance of the cooling tower and for the water treatment. At the time of contract renewal, Gillian Beckingham, the Design Services Manager for the council, made the decision to cancel the water treatment on the cooling tower and once the chemicals ran out, Legionella control within the tower was effectively lost and there was a subsequent outbreak. Interserve notified Gillian Beckingham of the imminent danger of an outbreak if the water treatment were to be cancelled on two occasions and yet despite this, and also the fact that they technically were no longer responsible for the water treatment following the cancellation of the contract, they were still found liable. It was argued that because of the foreseeable imminent risk of harm that Interserve had a Duty of Care to take further action and in effect didn t do everything Reasonably Practicable to prevent the outbreak by either: 1. Having an escalation procedure to report the incident further up the chain of command and carrying out this action. 2. Turning whistle blower and informing the HSE (ironically in this instance not the council). 3. Isolating and shutting down the tower as would a gas services engineer condemn a faulty boiler. Page 3 of 9

5 Hot and Cold Water Systems Compared to cooling towers, where there is an absolute and imminent risk of harm when a cooling tower is allowed to run with no water treatment, Legionella growth within hot and cold water services predominantly depends on two factors: Temperature Stagnation In the majority of situations in Tenants areas, the hot & cold water temperatures will be adequate to prevent/minimise Legionella growth and there will, in most scenarios, be adequate turnover of water to also not give the bacteria time to grow and multiply to significant numbers. The below advice provides further clarification on those situations where the risk might be perceived to be increased and what level of cooperation should be expected from Tenants. In order to completely comply with the requirement that is now in the revised ACOP L8, then a reply would be required from every Tenant regarding the water services in their area and whether a risk assessment had been carried out and also, where required, evidence to show that routine monitoring was being carried out on the water systems. It would be considered best practice to follow up and chase the Tenant for their risk assessment and supporting documentation if these are not made readily available. The risk assessments of residential properties (other than those wholly owned by the occupier) will be the Landlords responsibility if they have the responsibility for carrying out annual boiler gas safety checks. A risk assessment will be required in all instances where water is present and the Landlord has some responsibility for the management and maintenance of those water services. The exception to this will be Full Repair and Insure (FRI) properties. To be clear, this will require a risk assessment to be carried out of properties where the systems are mains feed only to electric immersion hot water heaters. Where a number of similar type properties are on the let estate, it would be reasonable to initially assess approximately 10% of the properties, with a view to assessing the others on a rolling programme going forward. If the risk assessment has never been carried out before, it would be advisable and make most sense to carry this out this at the time of the next boiler gas safety inspection/property inspection. The findings of the initial assessments will determine whether there are great differences between the water services in each apartment and thus dictate whether more properties need to be assessed in the first wave of risk assessments. Due to there not likely being an imminent risk of harm with regard the condition of the apartments water services and the risks that might present, there would be no need to carry out this exercise other than at a time that other works such as boiler inspections were planned to take place. Page 4 of 9

6 Scenario 1: Multi-occupied office (Landlord responsible for cold water tanks etc. and common toilets) The Landlord is responsible for the core water services such as tanks and calorifiers in plant-rooms and where they exist, water services i.e. toilets etc. in core areas. Tenants are responsible for the water services at the point where the water enters their demise. Approved specialist contractors will have carried out the risk assessment of the water services in the Landlord demised areas and identified any risks present and the relevant remedial actions required. All Tenants should be notified of their requirements. The ideal outcome would be a reply from all Tenants with a copy of their risk assessment. Where this is not forthcoming, it would be advisable to issue a follow up reminder . The risk will be low in those situations where the Tenant has minimal water services such as a kitchenette with one sink and perhaps a point of use water heater. It is possible that the Tenant could carry out the risk assessment themselves and this could be as simple as stating that the risks are low, and that the water heater is set at the correct temperature and there is regular use of the water thus avoiding stagnation. If no reply were received, the risk would still be low as in all probability the sink would be in regular use and even if the heater were set at an incorrect temperature then regular use would minimise the chance of Legionella growth. Issues could arise around dead-legs being present though and these could allow conditions of stagnation and incorrect water temperatures to exist which might give rise to Legionella growth within the system. The risk will increase with increasing complexity of water services within the Tenants demise and the risks will also increase where there are showers or other water services which produce significant quantities of aerosol. The Tenant will be considered the Duty Holder/Responsible Person with regard the water services in their area and liability will rest with them for any failings, but it would be considered best practice to proactively chase the Tenant to provide copies of their risk assessment especially where the water services become more complex. Page 5 of 9

7 Scenario 2: Mixed use development of shopping centre with some residential apartments. The residents of the apartments should be sent a notification letter. A risk assessment will need to be carried out of the water services within the residential apartments, and this will undoubtedly be the responsibility of the managing agent. At the time of the risk assessment review, Tenants should be notified of the need to access their property (as would be required to carry out an annual boiler gas safety inspection) in order to carry out a Legionella risk assessment. Where significant numbers of properties are present that might be considered to be very similar, it would be reasonable to access a few properties initially and access other properties in subsequent years to check that there were no major differences between the water services in the individual apartments. The risks in the majority of residential properties are low if the water services are in regular use. The main criteria at the time of the risk assessment will be to identify whether any significant issues are present which may increase the likelihood of Legionella growth such as tanks without insulation or missing lids, or hot water boilers which are set at incorrect temperatures. Modern residential apartments with combi boilers and no cold water storage tanks will offer less of a risk than older type properties where there may be cold water storage tanks present. The individual retail units should also be provided a notification letter. A reply will be required from the retail units with a copy of their risk assessment. Those retail units which have separated mains that do not branch off the Landlord s supply can be considered as almost separate entities. The water services will be wholly the Tenants responsibility and the idea of Landlord/Tenant co-operation is much less relevant here. As with vacant floors in an office, the water services will revert to Landlords control if the Tenant vacates. In those instances the water services should be flushed weekly until re-occupation, or the water services isolated in such a way as to not create dead-legs. If the Tenant has vacated but the lease hasn t expired i.e. the Tenant is still responsible for the water service in that area, then the Tenant should be notified of the need to manage the water services in that area in such a way as to avoid stagnation. Page 6 of 9

8 Scenario 3: Parade of shops with small number of residential flats above. Own water supply from the main. The individual shop units would be responsible for carrying out a water risk assessment in their demised areas and the notification should be sent out to them requesting a copy of their risk assessment. It is possible that the Tenant could carry out the risk assessment themselves. If no reply were received, the risk would still be low as in all probability the outlets would be in frequent use. Showers may be present in their demise and if not in use these could harbour Legionella growth. The liability would rest solely with the Tenant, and the potential for any shop unit to contaminate the water services of another unit would be small. Dead-legs could be present, but again, as the responsibility for carrying out the risk assessment lies with the Tenant of the shop unit, the responsibility for the water services also rests with them. It would be advisable to send out a follow up communication if no response were received to the initial request for them to provide a copy of their risk assessment The occupants of the residential flats should be sent a notification. An initial risk assessment should be carried out of the water services within each residential apartment/flat. Scenario 4: Residential accommodation only. The residents of the apartments should be sent a notification letter. A risk assessment will need to be carried out of the water services within the residential apartments. This will undoubtedly be the responsibility of the managing agent. At the time of the risk assessment review, Tenants should be notified of the need to access their property (as would be required to carry out an annual boiler gas safety inspection) in order to carry out a Legionella risk assessment. Where significant numbers of properties are present that might be considered to be very similar, it would be reasonable to access a few properties initially, and access other properties in subsequent years to check that there were no major differences between the water services in the individual apartments. The risks in the majority of residential properties are low if the water services are in regular use. The main criteria at the time of the risk assessment will be to identify whether any significant issues are present which may increase the likelihood of Legionella growth such as tanks without insulation, or missing lids or hot water boilers which are set at incorrect temperatures. Modern residential apartments with combi boilers and no cold water storage tanks will less of a risk than older type properties where there may be cold water storage tanks present. Page 7 of 9

9 Scenario 5: Multi-Occupied office all water services direct from the main trough to Tenant areas. The Landlord will be responsible for carrying out a risk assessment of the water services up to the point of entry into the Tenants demise. In all probability, this will include the point incoming mains and the common risers where checks will need to be carried out to determine that no dead-legs exist and that water services are adequately insulated etc. All Tenants should be sent a notification letter. The ideal outcome would be a reply from all Tenants with a copy of their risk assessment. Where this is not forthcoming, it would be advisable to issue a follow up reminder. The risk will be low in those situations where the Tenant has minimal water services such as a kitchenette with one sink and perhaps a point of use water heater. It is possible that the Tenant could carry out the risk assessment themselves and this could be as simple as stating that the risks are low, and that the water heater is set at the correct temperature and there is regular use of the water thus avoiding stagnation. If no reply were received, the risk would still be low as in all probability the sink would be in regular use and even if the heater were set at an incorrect temperature then regular use would minimise the chance of Legionella growth. Issues could arise around dead-legs being present though, and these could allow conditions of stagnation and incorrect water temperatures to exist which might give rise to Legionella growth within the system. The risk will increase with increasing complexity of water services within the Tenants demise and the risks will also increase where there are showers or other water services which produce significant quantities of aerosol. The Tenant will be considered the Duty Holder/Responsible Person with regard the water services in their area and liability will rest with them for any failings, but it would be considered best practice to proactively chase the Tenant to provide copies of their risk assessment especially where the water services become more complex. Scenario 6: Full Repair and Insure (FRI). The responsibility for the water services will rest solely with the Tenant. They will be responsible for carrying out the risk assessment of the water services and for implementing any remedial actions and carrying out any routine planned maintenance checks that are recommended in the risk assessment. Page 8 of 9

10 Summary: As stated earlier, the scenarios mentioned above do not claim to have considered every possible different alternative when it comes to demarcation of responsibility for Landlords and Tenants shared water services, but it is always worth remembering the following; all water systems require a risk assessment, but not all water systems require elaborate control measures. The responsibility for carrying out the risk assessment will lie with the party that has control of the water services i.e. if a boiler was to break, the person who would be responsible for fixing/replacing the boiler would the person responsible for having the risk assessment carried out, whether by themselves or by a third party. How can we help? Further information and guidance regarding responsibilities for commercial and residential Tenants can be found on the HSE website at: The HSE leaflet Legionnaires Disease A Brief Guide for Duty Holders is available for free here: For additional support and guidance from the S 2 Partnership s team of specialist water risk management consultants, please contact: hello@s2partnership.co.uk Call: +44 (0) The S 2 Partnership Ltd Avenue Business Park, Elsworth, Cambridge, CB23 4EY S 2 Partnership Ltd. All rights reserved. This information is of a general nature and is not intended as a substitute for professional consultation and advice on a particular matter nor is it intended to supersede internal company policies or guidance. For professional advice on a particular matter, please contact hello@s2partnership.co.uk, we d be happy to assist. Under no circumstances will S 2 Partnership Ltd be liable for any damages arising from the use of or reliance on this general information. V Page 9 of 9