Who is responsible for Health & Safety of the Communal areas – Directors or the appointed Managing Agents?

A question often asked of us at 4site Consulting is “Who is responsible for Health & Safety of the Communal areas – Directors or the appointed Managing Agents?”

Just like Employers, Freeholders and Resident Management Companies have many obligations when it comes to Health & Safety for the protection of their properties, the contractors who maintain them, and the safety of individual lessee’s and residents.

Management of Health and Safety at Work Regulations 1999 and the Regulatory Reform (Fire Safety) Order 2005.

The legislation driving the need for Health & Safety risk management creates a legal entity known as the “responsible person”, and that person has the duty to comply with the relevant legislation and guidance. In relation to residential common parts, this falls to either the landlord, or the person responsible for managing the building, which could be a managing agent or, in a self-management situation, one of the block's directors.

The legislation requires that the responsible person for the common parts of a residential property must manage risk, and the only practical way of fulfilling that is to carry out a suitable and sufficient Health and Safety risk assessment, and a Fire risk assessment. These risk assessments will identify any hazards, determine who is at risk, and provide details of any control measures that need to be introduced in order to remove or reduce the risks. The legislation also requires that any measures identified as a result of the risk assessment are required to be implemented and maintained.

In this day and age, we are all too aware that failing to comply with Health and Safety legislation can lead to prosecution, with the possibility of imprisonment and/or substantial fines, and in some cases, even being charged under the Corporate Manslaughter and Corporate Homicide Act 2007.

It is very clear that although prosecutions will be of the corporate body and not individuals, the liability of directors, board members or other individuals under Health and Safety law or general criminal law cannot be ignored. This means, therefore, that directors and managers can be held personally responsible for failure to control Health and Safety, and can be prosecuted under criminal law for serious breaches of Health & Safety law.

As a consequence, directors will always retain ultimate responsibility for the Health and Safety of their block, whether they delegate this to their agents or not. We have, ourselves, seen instances where Freeholders have been prosecuted, even though the responsibility for Safety Management had been delegated by them to a Managing Agent and often they receive the larger fines.

So, the answer to the question “Who is responsible for the Health & Safety of the communal areas – Directors or the appointed Managing Agents?” is quite simply, both have management responsibility and, more surprisingly, both will hold legal liability in the event of enforcement.

With that all said, there is no need to be fearful of taking on this responsibility. Most Enforcement officials will look kindly upon those who have made positive steps to manage Safety in the common parts, even if those steps may have been misguided – the worst pitfall you could fall into is hiding away until safety becomes an issue and then claiming ignorance: this approach simply doesn’t cut it anymore, especially when there is a wealth of information available and an abundance of competent and qualified professionals who are more than happy to assist.

Peter Silk is a NEBOSH qualified Health, Safety and Fire risk assessor with over 30 years’ experience with London Fire Brigade and fire service related industry. Peter’s role with 4site Consulting is to undertake health, safety and fire risk assessments on residential and commercial properties.

4site Consulting Limited is an independent Health & Safety Consultancy providing a 'one stop shop' range of specialist compliance services for owners, occupiers/tenants and managers of commercial property and residential blocks.

www.4siteconsulting.co.uk