What is legionnaire’s disease

Legionnaire’s disease is a potentially fatal form of pneumonia caused by the inhalation of small droplets of contaminated water containing legionellabacteria. Legionella is classed as a ‘dangerous substance’ in law, in much the

same way as asbestos, and is a deadly threat with farreaching consequences.

Legionella breeds in water, and all man-made hot andcold water systems are a potential source for legionellabacteria growth but the main areas of risk are where thebacteria can multiply and increase to dangerous levelsand then be spread, e.g. in spray from showers andtaps, hot-tubs, or in dishwasher and washing machinepipes. Conditions ripe for colonisation are where waterof between 20

O

and 45O

stagnates, and there is sludge,rust, slime, scale or organic matter for the bacteria to feed upon and multiply. Of particular risk, are older orpoorly maintained water systems, or vacant propertieswhere stagnant water is more likely to build up andprove fatal to future occupiers. It only takes four days

for legionella bacteria to multiply to dangerous levelsand the results can be deadly.

According to recent research by the Health and SafetyExecutive (HSE), the government body responsible for prosecuting and policing the law in this area, 90% of legionnaires’ outbreaks in the past decade were caused by individuals and organisations failing to identify risks and to implement effective control measures. Moreover, it showed that legionnaires can be found equally in smaller domestic water systems as well as larger commercial systems, hence the need for new legislation.

The majority of cases reported are usually isolated butsometimes outbreaks can occur, as you may have seen

in a recent press release:

Legionnaires disease: Your legalobligations as landlord and managing agent

The LawLegionella and

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180 people were struck down in recent outbreaks in Edinburgh during May 2012 andStoke on Trent in July 2012 causing 120 to behospitalised, 15 in intensive care resultingin 5 deaths. 10-15% of people who contract legionnaire’s disease, die from the condition.

Did you know that all landlordsand letting agents of privaterented properties are now legally required to take proper measures to protect their tenants against the risk of contracting legionnaire’s disease

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Recent changes in the law

The actual legislation around legionnaire’s disease has been around for some time, but it only applied to water systems over 300 litres in capacity (generally only found in commercial or industrial buildings). However, recentchanges in the law removed the 300 litre limit entirely, andbrought every landlord and letting agent of private rentedproperty under the legislation. This means landlords andtheir agents must now undertake a risk assessment andpreventative action to prevent their tenants, tradesmen and employees from contracting the disease. This new approach to water safety law represents the most significant change for over 20 years.

Are legionella risk assessments mandatory

One of the most common questions we are asked whenspeaking with clients is ‘but do I really need a legionellarisk assessment?’.

In short, yes. If you have water in your property which people can be exposed to, you need to assess and manage the risk from legionella bacteria.

In much the same way as fire risk assessments are compulsory for buildings containing self-contained flats or bedsits under The Fire Safety Order 2006, the new legionella regulations require a legionella risk assessmentto be undertaken for all domestic properties containing awater system. It isn’t really surprising that landlords andagents are unsure of the legal position. Current legionellasafety guidance can be confusing, even some big names in property management are getting caught out.

Legionnaires is a high-profile issue. The HSE is very activein this area at the moment and is increasing criminal prosecutions against persons failing to adhere to the law.Sanctions, prosecutions and personal injury litigation areeye-wateringly expensive, resulting, in extreme cases, in imprisonment.

Think it can never happen to you. Think again.

The most recent prosecution in the Midlands occurred fromusing a shower off a mixer tap set on a bath which was not in regular use. The bacteria colonised on the scale withinthe shower head itself and simply transferred through thesteam vapour which was inhaled whilst in use.

A landlord in Devon was faced with bills of more than£40,000 to repair a contaminated property in order toprevent legionnaire’s disease spreading even further,while a social landlord was prosecuted and fined£12,000 following an outbreak which led to one resident being hospitalised. The Magistrates Court

heard that a risk assessment had been carried out in2006 but a number of problems found with the watersystem were not addressed.

Criminal prosecutions by the HSE aside, the contraction of legionnaire’s disease has become a matter for personal injury litigation with currently over 500 claims for personal injury compensation being processed. Initial estimates suggest claims in excess of £20 million. If there have been failures of risk assessment or control ofrisks by a landlord or letting agent, then under the law ofnegligence, you are liable to pay compensation for loss ofearnings, pain, suffering and bereavement damages whichcan run in the tens of thousands of pounds.

andThere is one main Act of Parliament which imposes a statutory duty on landlords and letting agents with respect to health and safety, which is:

The Health and Safety at Work Act 1974 (as amended by the Consumer Protection Act 1987 and the Health

and Safety Offences Act 2008).

The Act lays down the general principles for managing health and safety, and enabled the creation of secondary legislation (such as StatutoryInstruments, known as Regulations, or ApprovedCodes of Practice) to deal with specific requirements. In relation to legionella, these are:

The Control of Substances Hazardous to Health Regulations 2002.

The Management of Health & Safety at Work Regulations 1999.

The Approved Code of Practice: Legionnaire’s Disease and the Control of Legionella Bacteria in Water Systems (ACOP L8).

Further guidance has been published by the HSE in the following leaflets:

Legionnaire’s Disease: A Brief Guide for Duty Holders (INDG458).

Essential Information for Providers of Residential Accommodation (INDG376).

Legionella contractionand litigation

The elderly, heavy smokers and those with respiratory problems are more at risk.

Legionella is temperaturesensitive

It thrives and multiplies at temperatures between 20O and45OC transfered through water vapour.

The Legislation

The Health and Safety at Work Act places an overarching‘duty of care’ upon the landlord and letting agent (the ‘duty holders’) to ensure the safety of all persons usingthe premises, including tenants, visitors, employees and tradesmen.

The Management of Health and Safety at Work Regulations 1999 imposes a duty to make suitable and sufficient assessments of potential risks, and the Control of Substances Hazardous to Health Regulations 2002 providea framework of actions designed to control the risk of hazardous substances including biological agents such as legionella.

The HSE’s primary document, the ACOP L8 (which is thedocument recently changed), provides extensive information regarding the prevention of legionnaires andforms the basis around which the risks are managed in the UK and it is legally enforceable.

Don’t be misguided by the fact the legislation refers to ‘employers’ and the ‘workplace’, the duties extend to both landlords and letting agents because the premises are controlled ‘in connection with a trade or business’.

There is no obligation to undertake a laboratory water sample analysis on domestic properties as there is withcommercial properties,but without one, it is difficult todemonstrate that ‘all reasonable precautions’ have been undertaken

Prosecution and Sanctions

There seems to be a general belief in many quarters thatbreaches of Health and Safety law will be treated lenientlyby the Courts and that offenders will get nothing more thana severe ‘ticking off’ and a nominal fine. In reality nothingcould be further from the truth.

Legionella breeds in redundant pipeworkA typical source housing stagnentwater. Redundant pipework shouldbe removed during routine maintenance.

The Regulations and the ACOPL8 require certain practical measures to be undertaken which include the carrying out of a prescribed risk assessment to identify the risksfrom legionella.

In practice, this means that landlords and their lettingagents must:

With a few exceptions, the findings of the assessmentshould be recorded and retained for a period of at least 5 years and reviewed regularly (at least every 2 years and preferably every 18 months), or whenever there is reason to suspect that it is no longer valid.

✓ Identify and assess sources of risk

✓ Prevent the risk

✓ Control the risk

✓ Manage the risk

✓ Keep records of the assessment

✓ Periodically check the that the controlmeasures are effective

The Risk Assessment

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The penalties are harsh, and were radically changed in 2008 when the main Act was amended and seriouslyramped up the penalties available to the Courts. Prosecution on summary conviction can now result in a fine of £20,000 per breach, and 12 months imprisonment.Should a case be serious enough to warrant being referredto the Crown Court, a Judge now has the power to impose an unlimited fine and up to 2 years in prison.

Do I really need to do it

Most definitely the answer is ‘Yes’, as recent cases prove.Failure to comply with the ACOP L8 is regarded as irrefutable proof by the Court of failure to complywith any or all of the above legislation and will result in prosecution against the person responsible.

The only defence for non-compliance is to prove that a person took ‘all reasonable precautions’ and exercised ‘all due diligence’ to avoid the commission of the offence. The records maintained will be crucial to the strength of any defence.

Legionnaire’s does not have to be present for a prosecution under the legislation. Even where there hasnot been an outbreak of legionnaire’s disease and no actual harm has been caused, prosecution will still be considered where a risk assessment has not been carried out.

What Must I Do to Comply

You must remove the risk of contracting legionnaire’s disease from your tenants by appointing a ‘competent person’ or specialist to carry out a risk assessment.

A competent person is someone with the necessary skills,knowledge and experience to manage health and safety, including the control measures. Where the above expertiseis not possessed by the landlord or letting agent, specialisthelp should be enlisted. All ACOP L8 certified persons areclassed as competent persons.

Where a risk is identified steps should be taken to deal withit, such as flushing out the system, avoiding debris gettinginto the system, maintaining the correct temperature, and advising tenants of the risks and how to avoid them (for example, running taps in unoccupied rooms). If any redundant pipe work is identified then this should

also be removed.

Legionnaire’s disease: It’s out there

In the same way regular gas safety checks, fire risk assessments and periodic electrical inspection reports are undertaken as a matter of course, water safety checks should now be included in your arsenal of duties. An approved risk assessment and compliance

certificate will not only reduce the risk of disease and injury to tenants, it will substantially mitigate the risk to you in the event of prosecution or a personal injury claim.

Head Office : AquaB Group LLP. Aqua House, Bridge Farm, Oldfield Lane, Matlock, Derbyshire. UK. DE4 2JY

Disclaimer: The views, information and opinion expressed in this leaflet are the views of AquaB Group LLP and are for information purposes only. They are not intended to constitutelegal or professional advice and should not be relied upon or treated as legal advice. AquaB Group LLP accept no responsibility for errors, omissions or misleading statements in thisleaflet, or for any loss which may arise from reliance on information contained in this leaflet.

For your local LTM Compliance Officercall our national freephone today

0800 035 8385www.aquabgroup.com

© Copyright AquaB Group LLP. 2013. All rights reserved. Leg/13/fact1

Legionella breeds in water

Ideal conditions for colonisation are where water stagnates and there is sludge, rust, andlimescale present or any otherorganic matter.

The AquaB Group providesthe only compliant risk assessment and certificationservice nationally for the control of water bacteria inthe domestic market

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