Dr Shaun Lundy is the Technical Director at 4site Consulting leading the service delivery, quality and new technical developments. Shaun is both a Chartered Safety & Health Practitioner and a Chartered Building Engineer.
In some cases, leaseholders may object to the costs associated with health and safety or fire assessments, however it is important to be aware that the Landlord or Managing Agent has obligations under current health, safety and fire legislation to ensure everyone’s health and safety. The consequences of not managing these risks could be high in terms of injury, poor health and costs relating to criminal enforcement action or civil compensation claims.
According to the Publication ‘Service charge residential management Code and additional advice to landlords, leaseholders and agents 3rd edition’ Authored by RICS and available on the governments website: http://www.legislation.gov.uk/uksi/2016/518/pdfs/uksicop_20160518_en.pdf
‘A service charge is defined as an amount that is payable by a leaseholder as part of or in addition to rent in respect of services, repairs, maintenance, insurance, improvements or costs of management.’
Details of what is covered by service charge is usually set out in the lease. Part of the charge will normally cover maintaining health, safety and fire arrangements in the common-parts of a block either explicitly or implicitly in the lease document. As such the terms of the lease will allow the landlord or Managing Agent to recover any costs associated with health, safety and fire measures from the service charge or reserve funds.
Leaseholders should not be unduly worried about health, safety or fire matters but should be aware that their landlord or Managing Agents have the responsibility to comply with a wide range of regulations relating to the buildings they manage. The Regulations are there to protect people living in, visiting or being employed in the property and usually applied to the common parts only. It is also worthy pointing out that these responsibilities would also apply to a Resident Management Company (RMC) including a Right to Manage Company (RTMC).
What risk assessments are required for communal areas?
It is a legal requirement under the Health and Safety at Work etc. Act 1974 and Management of Health and Safety at Work Regulations 1999 for all blocks of flats to have a health and safety risk assessment carried out in respect of significant risks to the communal areas.
Additionally, the Fire Safety (Regulatory Reform) Order 2005 requires that a fire risk assessment is also carried out for the communal areas. It is possible to combine the health, safety and fire risk assessment to save time and reduce cost providing the person conducting the assessments is competent in both fire and general health and safety issues.
Although it may seem that the communal areas of flats are not a place of work there are cases that have gone to court which have determined that if any employees such as contractors, cleaners, gardeners or even staff of the managing agent enter these areas then a risk assessment will be required. The communal areas are not limited to the inside of the building and include the roof and other external parts such as gardens, car parks, plant rooms and lift motor room, all of which will be taken into account when conducting a risk assessment. Documenting the risk assessment is important and, in most cases, a legal requirement. If an accident occurred and the landlord or Managing Agent had no evidence of a risk assessment being carried out, a criminal prosecution for negligence would be more likely to succeed and civil claims for compensation difficult to defend.
It’s also worth remembering that a risk assessment is not a one of activity and it is a legal requirement to review the assessment if there are any changes to the property, legislation or an incident with industry best practice being at least annually.
What other health and safety risk assessments are needed?
Legionella
Legionella is a bacterium found in water systems, which can in certain circumstances cause Legionnaires’ disease, a type of pneumonia. The landlord or Managing Agent has a duty to control the risks of legionella in any water pipes, tanks and taps in communal areas. There are particular requirements to monitor the quality of water supplies where the supply to individual properties or communal areas is other than direct from the water provider for example where there are communal tanks that store water and may become contaminated.
As with any potential hazard in your building the obvious place to start is by completing a risk assessment in accordance with the Control of Substances Hazardous to Health Regulations 2002 and Approved Code of Practice L8 on the control of legionella bacteria in water systems.
If there are risks identified then an action plan will be established to reduce those risks to an acceptable level. The assessment must be reviewed if anything changes in the property, any updates to legislation or guidance that affect the assessment or an incident. As with other risk assessments, depending on the overall risk posed by the system it may be recommended in the report that an annual or 2 yearly review is undertaken as a minimum.
Systems that are within individual flats such as, cold water tanks, taps and showers are the responsibility of the leaseholders and not usually included in the service charge elements for these assessments.
Asbestos
Your building may contain another hazard known as asbestos containing material (ACM). Asbestos is a naturally occurring material that was used prior to 2000 in buildings for insulation, flooring and roofing in the past due to its durable and fire-resistant properties. After 2000 it was no longer used in construction due to the realisation that there are harmful effects from breathing in asbestos fibres which can lead to lung disease such as asbestosis or mesothelioma. While asbestos can be dangerous, it doesn’t present a health risk if left undisturbed. But if material containing asbestos is damaged, it can release a fine dust that contains asbestos fibres.
Landlords and Managing Agents have a duty under The Control of Asbestos Regulations 2012 to identify any material that contains asbestos in the communal areas of a block of flats. This includes the roof and main structure of the building. As such it will be necessary to arrange for a survey to be conducted by a competent person to identify the location and condition of any asbestos present in the building. If asbestos is found a register of its location and condition will need to be created, and also a policy for the management and control of asbestos. There is no duty to remove asbestos and in the majority of cases it is considered far more dangerous to remove it than to leave it undisturbed. However, it is essential that any contractors carrying out works on the building if the landlord or managers are aware that asbestos is present. When works on a building must be undertaken in areas where asbestos is likely to be present the works will fall into one of the three categories below:
- Licensed work: This would involve the more dangerous materials containing asbestos, such as asbestos lagging and insulating board. Any contractors working at this level must be licensed by the Health and Safety Executive (HSE) and must notify the HSE of any work they intend to carry out.
- Non-licensed work: This type of work would include sporadic and low intensity exposure to asbestos, for example less dangerous textured coatings or asbestos cement. However, anyone carrying out this level of non-licensed work must still be appropriately trained and competent.
- Notifiable non-licensed work: Although not requiring a licence this type of work would still need to be notified to the HSE. The work would be sporadic and low intensity and applies to working with friable asbestos containing materials or where asbestos is bonded to a matrix, which means it is coated, covered or contained with another material. An example would be where cement or plastic was found to be significantly damaged and could release asbestos fibres.
There may be other items such as electrical testing, maintenance of lighting and gas safety etc that are also included in the health and safety element of the service charge. Health and safety can sometimes feel like a burden in terms of the cost and time required to comply with the various legal requirements. The truth is that it is much better to spend the time and money upfront ensuring that you have your Health and Safety covered properly rather than take that risk of not only having an accident, a fire or poor health caused by the property, but also having to pay far more in terms of fines for non-compliance or compensation for injury or loss of life. Everyone wants to be safe and healthy in their homes and risk assessments are a not only a legal requirement but also a useful tool in ensuring the health, safety and welfare of all.
