News Bulletin ACOP L8 HSG274: Understanding Landlord and Tenant Cooperation www.s2partnership.co.uk
News Bulletin
ACOP L8 HSG274: Understanding Landlord and Tenant Cooperation
www.s2partnership.co.uk
News Bulletin
ACOP L8 HSG274: Understanding Landlord and Tenant Cooperation
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 co-
operation is required for the responsibility of shared water services.
If you require any advice on your responsibilities or Landlord/Tenant co-
operation, please contact our experienced team of consultants:
Email: [email protected]: +44 (0)1954 267788
Page 1 of 9
News Bulletin
ACOP L8 HSG274: Understanding Landlord and Tenant Cooperation
IntroductionThe 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
News Bulletin
ACOP L8 HSG274: Understanding Landlord and Tenant Cooperation
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
News Bulletin
ACOP L8 HSG274: Understanding Landlord and Tenant Cooperation
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
News Bulletin
ACOP L8 HSG274: Understanding Landlord and Tenant Cooperation
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 email. 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
News Bulletin
ACOP L8 HSG274: Understanding Landlord and Tenant Cooperation
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
News Bulletin
ACOP L8 HSG274: Understanding Landlord and Tenant Cooperation
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
News Bulletin
ACOP L8 HSG274: Understanding Landlord and Tenant Cooperation
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
News Bulletin
ACOP L8 HSG274: Understanding Landlord and Tenant Cooperation
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.
Page 9 of 9
How can we help?
Further information and guidance regarding responsibilities for commercial and
residential Tenants can be found on the HSE website at:
http://www.hse.gov.uk/pubns/books/hsg274.htm
The HSE leaflet Legionnaires Disease – A Brief Guide for Duty Holders is
available for free here:
http://www.hse.gov.uk/pubns/indg458.htm
For additional support and guidance from the S2 Partnership’s team of specialist
water risk management consultants, please contact:
© S2 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 [email protected], we’d be happy to assist. Under no circumstances will S2 Partnership Ltd be liable for any
damages arising from the use of or reliance on this general information.
V20150603
Email: [email protected]: +44 (0)1954 267788
The S2 Partnership Ltd. 14-17 Avenue Business Park, Elsworth, Cambridge, CB23 4EY