Legionella Testing:

Since the introduction of new regulations which include smaller water supplies regarding Legionella risks, landlords and agents have either reacted with alarm or they are totally in the dark about them.

So much so that the authorities including the Health & Safety Executive (HSE) and the Chartered Institute of Plumbing and Heating Engineering (CIPHE) say that they have been receiving lots of calls from concerned landlords and their engineer members requesting information about Legionella certification and testing.

This article applies primarily to English law. Although tenancy laws are similar in other jurisdictions, there may be significant differences. Always seek professional advice before making or not making important decisions.

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Media stories and some letting agents and consultants in the field have perpetuated an urban myth that there has been a big change in landlords’ responsibilities regarding Legionella testing, and that regular testing and certification by qualified professionals is required.

However, there has been no change in the law as such; landlords or their agents are not required to carry out a test or take water samples (completed by a professional) or obtain a Legionella test certificate. There is simply a legal requirement to assess the risk and control it. However, landlords do have a general duty of care to ensure that they are providing safe accommodation.

In order to do that and be in a position to prove they have done it, it is necessary to have someone with sufficient competence to assess the risk and although not strictly necessary it is a good idea to complete a documented risk assessment. In other words, only a reasonable amount of common sense is required.

HSE Advice

The Health and Safety Executive advice on this, which refers to the Approved Code of Practice ACOP (L8), says:

“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 [they] 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 i.e. 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 [simply running off the taps]
  • avoiding debris getting into the system (e.g. ensure the cold water tanks, where fitted, have a tight fitting lid) [and cleaning shower heads]
  • setting control parameters (e.g. 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. [dead runs to removed washing machines, garden hoses etc].

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

In practice

Most landlords and agents will be perfectly capable of assessing the risk themselves between tenancies and ideally documenting this to show it has been done – risk assessment documents are available to download free of charge here: www.landlordzone.co.uk/documents

The risk if any is most acute after a prolonged void period where water in the system has been stagnant and shower heads are in need of a deep clean. Outside hot tubs and water sprays may pose a greater risk than any internal water systems.

HMOs

The guidance above does not apply to properties that are connected to communal plumbing and heating systems, where stricter rules apply for HMOs. In some cases a risk assessment is absolutely necessary, along with checking risks on other health and safety requirements on an annual basis – see:

The Management of Houses in Multiple Occupation (England) Regulations 2006

As with all matters to do with managing a tenancy, landlords / agents are advised to keep a record of all inspections, assessments and communications with their tenants to provide evidence that they have complied with their duty as a landlord – a tenancy journal and risk assessment checklists are ideal ways to do this.

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