Legionella, ella, ella…

(This blog was first published on 13th June 2013 and updated on 17th June 2013, 20th June 2013, & 5th July 2013, & 30th July 2013)

For ease, here is a copy of the template letter given to us by our compliance advisors to send out to all of our managed landlords, that gives a brief explanation.

Dear [enter name],

Re: Legionella Risk assessment

Due to changes to the Approved Code of Practice which tells you how to comply with the law in this area it is required that all rental properties must have had a Legionella Risk Assessment.

We regret that this places yet another burden upon the Landlords but as a professional management agency we cannot ignore compliance issues, particularly in relation to Tenant health and safety matters.

The relevant legislation can be viewed at www.hse.gov.uk/legionnaires.

The risk assessment survey must be performed by a professionally trained and accredited body and to this end we have contracted with MiH20 (part of the Mobile Inventory Program Ltd group-providing professional services to the letting industry) to conduct surveys on our behalf.

Records must be kept for a minimum of 5 years. The cost of this will be £120 + VAT and passed directly on without addition or admin fee.

This will be charged to your account unless we receive your explicit written instructions or a copy of an accredited risk assessment for your property. If this charge will leave you in financial difficulties please contact us to discuss options including possibly spreading payment over a short period.

Whilst we regret any event that has a cost implication to our clients, we are sure that you will understand this is a legal requirement.

As with most legislative news in the property industry, there is plenty of confusion, scratching of heads, and plain naïve ignorance on the subject. I would consider myself one who keeps themselves up-to-date with current legislation, but it took a call from one of our contractors to make me aware of this.

Doing a little internet research will only give you contradictory opinions, facts, and guidance so all I can say is be aware. When you rent out a property, you own a business. You should therefore take every step possible to keep yourself updated on relevant legislation, especially when you could be held liable and accountable.

And how often do you need to get your properties assessed?

Every 2 years, apparently. I know. Even though the only reported case of a Tenant contracting Legionnaire’s Disease occurred after the standing water was left in the pipes for 6 months, not in excess of 2 years… I can’t actually find any mention of this case online though so it obviously wasn’t a major case.

Will I be getting all of my properties assessed? My internal jury is still as far out to sea as the horizon at present. When you are a Landlord with 10+ properties, £120 + VAT per property every 2 years certainly adds up quickly… Then there are the gas safety certificates, electrical periodic inspections, buildings insurance, rent guarantees, council tax on void periods, etc.

Consider yourselves told. 🙂

Cheers,

Nick

For further information and reading, check out these links:

UPDATES – 17th June 2013

I sent this post to all of Homesure’s old & new landlords and received, not surprisingly, plenty of responses with lots of further questions so I thought I’d update this blog accordingly to answer some of them. I’ll copy & paste the answers/information and provide links rather than waffle on.

“What is Legionella anyway?!”

I had no idea.

“Legionnaires’ disease is a potentially fatal form of pneumonia caused by the legionella bacteria.”

“Is it a legal requirement though?”

Still not entirely sure. Annual Gas Safety Certificates are a legal requirement, whereas Electrical Periodic Inspection Reports (PIR) are not. However, if anything did happen to a Tenant through a fault with the electrical system, who may still be fined/imprisoned because you have not followed ‘Best Practice’ and have not acted as a responsible Landlord, despite not being forced to by law. You would therefore think that they would just make it a legal requirement then, wouldn’t you?

On that note, I would HIGHLY recommend getting a PIR done on ALL properties. I do not see why the HSE thinks that electricity is less dangerous/fatal than gas. Further, if a Tenant does something stupid (sticks their finger in a socket) but it doesn’t trip out the system, YOU would be found at fault, i.e. Tenants’ behaviour can leave you in the firing line.

Further info here:

“HSE is only able to provide generic information on health and safety issues and cannot give specific advice on individual cases as the circumstances of each individual situation will be different, and ultimately only the courts can give an authoritative interpretation of the law when considering the application of the Health and Safety at Work Regulations (HSWA) and the Management of Health and Safety at Work Regulations (MHSWR).” [http://www.hse.gov.uk/legionnaires/faqs.htm]

“Thanks, but we don’t have tanks all water on mains supply so no need.”

Apparently, it’s not just tanks, but ALL pipework and ‘end-user’ fixtures & fittings.

“Legionella are bacteria that are common in natural (rivers and lakes etc) and artificial water systems, e.g. hot and cold water systems (storage tanks, pipework, taps and showers). We usually associate legionella with larger water systems, e.g. in factories, hotels, hospitals and museums, and cooling towers, but they can also live in smaller water supply systems used in homes and other residential accommodation. Other potential sources of legionella include spa and whirlpool baths, humidifiers (in factories) and fire-fighting systems (sprinklers and hose reels).”

Therefore, if you have so much as a tap in your rented property, you need one, apparently.

“By saying your own jury is far out with your own portfolio, do you mean you’re considering vetoing this legislation?” / “Are you going to have your own property assessed?”

I’m still considering both options, though this will cost more than the buildings insurance on each one! I know it may seem naive to write this on the internet where I could be ‘caught’ immediately for flouting the law (if it is the law?!) but I would like the powers that be to see the journey I’ve had to go on to arrive at my final decision, so that they can see how these legislative changes affect professional Landlords.

I’m going to continue looking into it and following some industry forums & discussions and make a decision. Do remember that HIPs (Home Information Packs) were introduced and then withdrawn (at great expense to both Government, Vendors, and the wider economy) once they realised it was irrelevant, pointless, and arbitrary.

“By what date must our first risk assessments be performed?”

Erm… now?

“Do you have to be qualified, or can anyone do it?” / “I’ve had a look at this online and it seems quite vague. It seems that people can just do their own risk assessment but I’m not sure to what extent this is then validated. I am aware that it’s probably difficult to gauge at the moment as it’s quite early and this seems new. Please let me know what the consensus is with other landlords.”

It would seem that, no, you don’t have to be qualified.

See points 23 & 44 on page 12 here: http://www.hse.gov.uk/pubns/priced/l8.pdf

However, there are companies who are getting themselves accredited (don’t know who with if it’s not required) to offer the report. I suppose the difference is:

Get it done via an ‘approved’ assessor, safe in the knowledge that you are covered by their professional indemnity insurance for errors, or;
Do it yourself (for free but having done plenty of research) but run the risk of being accused of not doing it properly

I would assume you have a better chance of winning the lottery rather than having a property with Legionella and not having done the risk assessment properly.

“Does a new property coming onto your books have to be risk-assessed before the first tenant moves in?”

Can only assume so. It would seem that the point of it is to avoid a Tenant contracting Legionnaire’s disease, therefore I assume the risk needs to be assessed from day one/just before a Tenant moves in.

“Nick, is this a scam?? Legionella is not an issue in domestic residences and an assessment is totally worthless as it probably does not check for the microbe, and even if it did it would not prevent the microbe from arriving the following day.”

This is a comment from a Doctor, so I think he has at least some relevant knowledge, even if it isn’t his primary field.

I fully agree – it seems to be a snapshot of the risk, rather than an ongoing thing (checking fire alarms for example).

“I will sign the disclaimer as I have never heard of any cases coming from houses to be honest. It just feels like another Government way to make money to be honest.”

I don’t blame you. Will send the disclaimer out in due course.

UPDATES – 20th June 2013

Another one of our landlords is a doctor and mentioned this:

“As you very clearly discuss in the blog, this is plainly ridiculous for most residential dwellings.

Legionella control requires daily awareness of the factors that favour the growth of the bacterium; that means keeping hot water hot, cold water cold, eliminating standing water and ensuring any standing water systems are adequately protected / disinfected.

If this legislation aims to reduce the risk of Legionella, then it should involve compulsory education of tenants to not leave any standing water, keep buckets upside down, run all taps and water outlets for at least 5 minutes per day. The only likely reservoir for legionella in my house is the water tanks in the loft. I imagine that any inspection would state these as a potential source and to be aware if the risk but no further action.”

He then sent through a DIY ‘Legionella Risk Assessment’ for his property as follows:

Risk – Cold water header tank in loft
- Mitigation – In normal use, water is unlikely to stagnate as water is used for power shower and during use of hot water. Tank is lagged and covered.
Risk – Central heating header tank in loft
- Mitigation – Tank is covered, loft is rarely accessed. No droplet producing features.
Risk – Shower outlet
- Mitigation – Used frequently, if unused for a period of time, aim to ensure it is run for > five minutes at least one per week.
Risk – Taps
- Mitigation – Only taps are in the bathroom and kitchen, therefore unlikely to be unused for prolonged periods. Ensure bath taps are run at least once per week to prevent water stagnation. Cold water feed is direct from mains so unlikely to be >20 degrees centigrade.
Risk – Washing machine
- Mitigation – Potential risk of water stagnation in machine or drainage system if unused for prolonged periods. However, not likely to produce droplets as direct drainage to waste pipe.
Risk – Hot water system in general
- Mitigation – Regularly serviced boiler with service contract. Efficiently heats water so when used is likely to produce water >60 degrees centigrade.
Risk – Occupants
- Mitigation – I am unaware of any ongoing health conditions or immunocompromise which may make the current tenants more susceptible to infection with Legionella.

So, the big question is: Is this a sufficient Legionella Risk Assessment for your property?

For me, if the answer is ‘yes’, then how stupid is this?! What tangible value can something as brief & vague as this provide? (By the way, he created the above from Australia…)

If the answer is ‘no’, then what would an ‘official’ Legionella Risk Assessment look like, and what would the end result be? Giving a formal report to your Tenant on ‘How to avoid Legionella in your property’?

My boat is drifting ever further out to sea…

UPDATES – 5th July 2013

For those of you who care, here are some further updates from relevant industry professionals in response to my blog (for commercial reasons, I won’t post their names/businesses but if you want them, just ask):

http://www.hse.gov.uk/legionnaires/

“Read the blogs – v interesting!! It is true that it is not mandatory but the only defence in case of a claim is compliance with the ACOP. A poor quality or insufficient assessment that is non-compliant also gives no protection and is in itself an offence.

If a landlord feels the risk of a claim is negligible and is prepared to gamble against that – let him. The potential penalties are massive but it’s true there are few cases — there will be more as tenant awareness and claim culture bites. It’s a gamble…

Whilst the property itself may offer low risks –. The infirmity of a tenant or their visitors cannot be prejudged, and should a claim ever arise the only defence is due diligence and compliance. Can you rely on all tenants?”

A consultant’s point of view

“I’ve been allowed to comment on this blog, and on some of the issues raised. I’ve tried to relate my comments to the context of a domestic property.

This is not a sales pitch, and I was going to write this anonymously, but on second thoughts I’ve included my direct email in case readers have specific queries etc.

Similarly, this is not legal or procedural guidance relating to your business operation. It is information and general guidance only. By way of a personal introduction, for many years I was a housing manager in the public sector. Since 2007 I have been working as a legionella risk assessor consultant and since 2011 have operated my own consultancy and risk assessing company.

I can be contacted at [deleted – please ask].”

Introduction

Legionnaires Disease is a form of pneumonia with broadly similar symptoms, and is caused by legionella bacteria. According to official statistics it affects two to three hundred plus people a year in the UK.

Some experts have suggested that this figure may actually nearer be several thousand as a result of misdiagnosis. The mortality rate from the disease is about 10-12 % so death rates may actually be in the hundreds.

Susceptibility tends to be age related, with those over 45 years becoming more susceptible. General health is a factor so those with reduced immune systems, respiratory problems, diabetics, heavy drinkers and smokers are more susceptible.

Legionella bacteria are naturally occurring in rivers and reservoirs and can be present in the incoming mains water supply to a building. Given the right combination of temperature, nutrients and other conditions the bacteria can multiply rapidly. If a means of transmission exists then they can infect individuals with legionnaire’s disease (LD)

Transmission is through aerosols (mist / fine water droplets / spray) which are breathed in. This is why LD is often associated with air conditioning cooling towers which, by design and if not properly maintained, can disperse contaminated aerosols across a wide area with the potential to infect a high number of people. On a much smaller scale, a shower head, tap or spa bath can replicate the conditions with the numbers of people affected likely to be much smaller.

Three cases from 2012

Edinburgh, during the summer and involving fatalities and many more infected. Investigations ongoing but believed to be cooling tower related.
The Midlands, during the summer; two fatalities and around a dozen infected. The source was a spa pool on display in a show room. Those infected were obviously not using the spa pool, but were in the immediate vicinity when the spa bath was being demonstrated.
A recent inquest in Reading concluded the death of a care home resident from LD was due to legionella bacteria colonising a wash basin tap in his room.

Three quick examples to indicate that legionella bacteria can be spread over a wide area infecting lots of individuals, or it can colonise a part of a water system and affect a single person.

The law

The HSEs Approved Code of Practice (the ACoP) for the control of legionella bacteria has special status in law and therefore you can be prosecuted for breach of health and safety law if you did not follow the relevant provisions of the code, and cannot show compliance in some other way. The Code was first published in 1991 so this law is not new, although it has been revised from time to time (and is currently being reviewed).

It is directed at employers and people in control of premises, e.g. landlords

Implementing the Code of Practice requires you to:

Identify and assess sources of risk;
Prepare a scheme (a written course of action) for preventing or controlling the risk;
Implement and manage the scheme – appointing a person to be managerially responsible – the “responsible person”;
Keep records and check what has been done, and is being done, is effective;
Review periodically in case anything changes in your [water] system.

Any landlord is instantly at a disadvantage here as, with the best will in the world, your own efforts to prevent or control risk can be undermined by the personal choices of someone living in your property. In addition, some monitoring procedures and tasks are not going to be possible for a landlord and the official guidance is devoid of alternative suggestions.

You can adopt good practice from public sector landlords and include some information in your documentation to new tenants, such as flushing outlets after an absence from home of more than a week, and cleaning and descaling shower heads and hoses. You can also build such measures into your basic checks and cleaning regimes before reletting a property.

A local authority I know of sets or resets thermostats on hot water cylinders to 60 deg c as part of its void property procedure and informs the new tenant why it has done so and provides a leaflet with “good practice for water hygiene”.

Risk factors

Legionella bacteria prefer certain conditions:

Temperature – it can exist but does not multiply in water temperatures below 20 deg c. It begins to die in water temperatures of 50 deg c and above. Temperatures between those extremes should be avoided.
It requires nutrients – scale, rust, sediment or other contaminants in a cold water storage tank or other storage vessel, scale on a tap or showerhead, or biofilm, which is “slime” on the inside of pipework or fittings.
Stagnation – it favours stagnant water. You might equate stagnant water with a pond, but water can stagnate in supply pipework to a little used or unused tap, pipework to removed equipment, or in any storage vessel (e.g. a tank) where there is poor turnover of water as a result of low usage or poor design.

Risk factors – design / use

In theory, a domestic water system that is entirely mains fed, with hot water coming from a combination boiler ( which provides hot water on demand with minimal storage ) should be safer than a system incorporating a cold water storage tank and / or hot water cylinder. However, if the property is empty for a couple of weeks ( holidays, between lettings or whatever ) then there is the potential for water stagnation in the pipework. ( It’s worth pointing out that cases of LD increase during the summer months, presumably because of higher ambient temperatures ).

Systems with stored cold or hot water can be higher risk directly because of the condition of the equipment or design. A plastic tank is lower risk than an asbestos or galvanised tank, but a plastic tank full of scale and/or sediment is a high risk “asset”.

Underpinning all of the above is patterns of usage. Ideally a cold water tank should turn over within 24 hours ( empty and replenish ) but if the tank feeds a shower and bath and the shower is mainly used, the turnover may not be as great. Then you obviously get folk that simply don’t bathe!

I have tested for and found legionella bacteria within mains fed houses with combination boilers, within self contained flats in sheltered housing schemes and within individual flats in purpose built student accommodation.

I don’t think anyone can say with certainty how many cases of LD can be linked to legionella exposure within a single house or flat. Outbreaks, by definition involve clusters of cases and get investigated by the Authorities. An individual at home developing pneumonia like symptoms will be treated accordingly. In the Reading case referred to above, the initial diagnosis by the GP was pneumonia. LD was not identified until further tests in hospital after the individual was admitted as their condition worsened.

However, any water system may have the potential to become colonised by legionella bacteria.

If you have any exotic equipment / facilities in your properties such as a spa pools, hot tubs or Jacuzzi’s then you need to be taking action immediately to ensure it is operated and maintained exactly according to the manufacturer’s specifications. There is a specific document relating to this accessed via the HSE’s website.

A final point you may wish to consider is the susceptibility of your tenants. I imagine you will not be aware of general medical problems, but if you have tenants over 50 years of age then their susceptibility in general is increased.

The risk assessment – who and what to expect

You can carry out your own risk assessment. The guidance is in the HSEs ‘Approved Code of Practice’ and can be downloaded from their website free of charge, and for a landlord the relevant pages are 40 – 59. Bear in mind that the document is currently being reviewed and the updated version is due at the end of 2013.

To be fair, a simple mains fed property with hot water from a combination boiler would be fairly straightforward to self risk assess and you could use the checklist on Page 58 of the ACoP as a basis. But additional risk factors would be the condition of outlets ( scale on taps and showerheads for example ) and usage. Basic recommendations would be to set the combination boiler thermostat to give a 50 deg c minimum temperature on all hot outlets, descale and clean taps and shower heads as and when required and flush before use following any absence for longer than a week. That’s the basis of your “written course of action.” Some of those actions can be passed on as guidance to your tenants and double checked or carried out yourself during periods between re-lets.

Once you have tanks and cylinders in a property you are getting into more complicated territory so at that point you may wish to engage a consultant.

If you engage a consultant for a legionella risk assessment you should ask them what their risk assessment includes.

A Risk Assessment should include as a minimum:

A description of the system and all assets (tanks, cylinders etc) including photographs;
A condition survey and summary of risks;
A course of action to reduce or eliminate risks (which may include remedial works such as cleaning and disinfecting a water tank if it is contaminated or alterations to plumbing). The course of action will include periodic tasks that you should perform (and for landlords, guidance / advice to pass onto tenants). My own risk assessment packages also include site specific logbooks for use with ongoing monitoring and related activities;
A water system schematic / plan;
A management structure detailing the responsible person[s]

My own risk assessments / surveys include water sampling and analysis. This is not strictly a legal requirement for every building I go into, but my view is that water sampling builds on the survey findings providing a basis from which to proceed

Risk assessments – pricing

I have to admit that my base price for say a 3-bed house with bathroom, kitchen and ground floor WC is less than the price quoted on the blog. I also price differently depending on the water system. If a house has a tank in a loft the price is higher than a mains fed house with a “combi” boiler because I’ve got more to do, and in a potentially risky location.

Time on site for a risk assessment on an average 3 bed house is going to be around 30 minutes and if there is no need to get into a loft, possibly less. Yes, the assessing company needs to produce a report for you so there are costs there, but we are not talking “War and Peace”. Modern[ish] houses tend to follow a basic water system design so to a point a risk assessment format is going to pretty generic. But that is not to say the risk assessment should be a “cut and paste” job. The risk assessment should be adequate and suitable for the property being assessed.

So if you buy in a risk assessment, it’s worth shopping around. It helps [ me for example when I’m quoting for a job ] if you know what you have in your property (tanks, hot water cylinders and so on) and ask the provider exactly what tasks they will be carrying out.

If the assessing company is doing water sampling ask what type of sampling they are doing. Legionella definitely, but if it’s a mains fed house you don’t need a full drinking water analysis carrying out (which is pricey). If it’s a rural property on a private supply then I would recommend such analysis.

Also, the gold standard for analysis is a UKAS accredited laboratory. You should always ask for and receive a copy of the analysis certificate.

Risk assessments – the aftermath

Clients sometimes regard a risk assessment as the beginning and end of the process. Possession of a risk assessment does not necessarily imply you have a safe water system that is low risk.
I have been to properties and found everything fully compliant and “safe”, but it is a “snapshot” of a system at the time of the survey. To ensure it remains a safe system ongoing checks and monitoring activities have to be implemented and acted upon if such checks suggest a system becoming unsafe; and all monitoring and checks recorded.

Such checks form a set of recommendations within the reports I produce. “Unsafe” systems may need remedial works carrying out and failure to implement such work leaves the owner / operator open to prosecution if something should go wrong.

My own way of operating once I’ve delivered the risk assessment is to hold a meeting with the client to go through the document and the recommendations and procedures that need to be followed.

Monitoring

The Code of Practice contains monitoring activities and tasks which may be necessary weekly, monthly, quarterly, 6 monthly and annually or as required. Some of these will be problematical for any landlord.

Monthly monitoring of outlet temperatures I suspect is going to be non-starter for any landlord (the aim is to ensure cold outlet temperatures are below 20 deg c and hot above 50 deg c). Similarly, the required monthly checks on hot output temperatures from hot water cylinders if installed are unlikely to happen. My best advice is to set the hot water cylinder thermostat to 60 deg (and I’d take a time and date stamped photograph of it) with a letter to the tenants advising it’s set at that temperature for the purposes of water hygiene.

Cold water storage tanks should be inspected twice yearly (ideally winter and summer) to check temperature and internal conditions. This could and should be programmed in either by prior arrangement with your tenant, or during any gap between lettings if it falls appropriately. There is no reason why some of the other checks cannot be carried out at the same time.

Following on from that, if your property is empty for a couple of weeks between lettings and it has a cold water storage tank (and normally a hot water cylinder) you should be opening cold and hot taps served by the tank / cylinder combination and leave them running for several minutes. What you are doing is purging stagnant water from the stored water part of the system as well as purging stagnant water from pipework itself. At the same time turn on the kitchen cold tap and run that to purge stagnant water from the supply pipe.

If the system is all mains fed with no stored water (hot or cold) the same process applies. Purge the stagnant water.

Flushing / purging is one of the simplest and most effective ways to control legionella and for maximum effect do it just before the new tenants move in.

Risk assessments – reviews

Currently the requirements are to review the risk assessment every 2 years, or if other circumstances arise such as change of use of the building or the water system or its use. The review is to consider if the risk assessment is still valid and whether the control measures are sufficient, effective or indeed being carried out.

The water system within an average house is hugely less complicated than that in a 40 roomed care home as is the range and complexity of the control measures. Change of use is unlikely but change of water system ( or a partial change ) is a possibility. For example, a badly executed bathroom conversion from say a bath / wash basin / wc combination to a “wet room” could create a water system where the risk of legionella proliferation could be increased as a result of bad plumbing.

If you decide to convert a house in your portfolio into several flats, then a new risk assessment is a requirement – change of use, change of water system and so.

Assuming nothing has changed in the property one suggestion is to carry out the review yourself using the original risk assessment as a template. That is not unlawful providing you are competent to carry out the task.

What you could do is accompany the risk assessor when they carry out the initial survey to get a feel for what needs to be done. In addition, providing you are carrying out the monitoring procedures and other tasks outlined above, you are in effect carrying out an ongoing review and taking measures to control the risk from legionella bacteria. However, if you find and ignore a contaminated water tank then the risk, liability and possible prosecution is on you.

If you decide to use the same risk assessor to carry out a 2 yearly review then the price should not necessarily be the same as the initial risk assessment. It is dependent on the type of building being “reviewed” or the complexity of the water system. When I carry out a review I have the original report and water schematic so I know where everything so it reduces my time on site. So in some instances and especially with domestic properties I will reduce the price.

A final thought

I always advise my clients and anyone else…..

Picking on 2010 as an example there were 359 confirmed cases of legionnaires disease in England and Wales. Around 40% were acquired from travel ( mainly abroad ). So if you are on holiday this year, in a hotel for example, follow my practice and flush the shower before you use it for the first time. The best way is to take the shower head off and just run water through the hose ( thus reducing excessive aerosol generation ) and if the shower head is dirty, get a member of staff to clean it. The business that operates the hotel may have a comprehensive legionella control system in place, but best to be safe.

And when you get home, flush your own shower before you use it.

Thanks for reading and I hope it has been informative. My email address is at beginning of this article so feel free to contact me – advice is free! Questions and answers I’ll pass onto Nick to go on his website blog.

Regards

Tim
June 2013

UPDATES – 30th July 2013

An email received from Tim:

“Hi Nick,

Some information I have via colleague that might be of interest to you.

My colleague has been working on a contract carrying out legionella RAs on around 1200 privately rented properties. Water sampling & analysis has also been carried out and the results are rather interesting. The amount of positive results have been around 7% with a significant number over 1000 cfu/litre at which point remedial actions should be carried out including complete clean and disinfection of the system.

Some of this is going to be weather related as legionnaires disease cases tend to rise in the summer months due to higher ambient temperatures but that is still a significantly high percentage of positives.

Best regards,

Tim”