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Posted By Ken Taylor
Here’s one for our legal viewers. It is becoming a practice these days for residents management companies to be formed to look after the common areas of private housing developments (access road, grass verges, etc) - instead of the old method of trying to get money out of all the frontagers when the road is falling apart. They will have one or two annually-appointed unpaid Directors - one of whom will collect payments monthly (direct debit) and pay for insurance and a contractor to cut the grass. Whilst appreciating the desirability of having risk assessments, etc and that, should they ever employ anyone, they would be subject to HASAWA and all that goes with it, do readers consider that they would, in the situation described above, be subject to HASAWA. A consequence of this would be that if, say, a communal wall fell onto a visitor, not only would there be a potential for civil action but enforcement or prosecution could attend.
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Posted By Ken Taylor
I'll take that as a 'don't know' then - unless I am a victim of the 'early relegation to the next page' syndrome.
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Posted By Geoff Burt
Hi Ken, I'll speak to you.
Could I just turn your question around a little to see if it brings out any answers?
The normal method (at least it is at the moment until more leaseholders take advantage of the recent legislation) is to have an outside company managing, say, a block of flats on behalf of the leaseholders.
They employ people on their behalf to discharge their duties to the leaseholders in managing the flats eg painting, gardening, replacing doors and windows, carpets etc.
Thus the managing agents and all the contractors working at the flats come under 'at work' legislation. But also by the managing agents undertaking eg managing the flats, they affect the leaseholders so the HS&W Act applies.
From that we now move to the voluntary organisation of managing agents you talked about - surely they are still under the HS&W Act. Just as any charity is, or any committee such as a Parish Council, or WI. And as a voluntary body taking on the responsibility of managing the flats then they also have a civil duty of care over and above that of the leaseholders they are representing.
Geoff
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Posted By Martyn Hendrie
The reason for setting up such"company's" is to take advantage of various loopholes in the system (presumably tax/VAT issues).
A consequence of those benefits is that the company is acting by way of trade or business and therefore HASAWA and other safety legislation would apply.
The company may not "employ" anyone other than the directors (payment of salary not being essential) but they would still have to manage how they engage/monitor & supervise contractors and comply with Clients duties under CDM where it is applicable.
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Posted By Ken Taylor
Thanks Geoff - it's nice to hear from you again.
In the cases I have in mind, we are dealing with free-holder residents of houses accessed by private roads with common amenity areas. So the issue is one of private owners looking after their own common properties by setting up a limited company to do so - usually as a condition of purchase imposed by the developer as a requirement of the planning authority to ensure that the development is 'kept up-to-standard'. I often see private roads and access ways to garages, etc in a terrible state (full of pot-holes' and the like) which proves a useful speed control measure and deters unauthorised access to some extent. I assume that, if people trip up in the pot-holes, they will either be residents who are partly responsible for the condition or visitors who are unlikely to consider taking legal action against a whole road full of unknown property owners. A residents management company, however, will be more readily identifiable and able to be sued (which, incidentally, would appear to make the 'old do as little as you can' method more attractive) and certainly prosecuted if they employ anybody. The question remaining seems to be whether current interpretation of HASAWA will regard all the private owner/residents as shareholders as subject, those who are daft enough to get themselves elected as unpaid Directors, or none of the above.
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Posted By Geoff Burt
Ken
I don't think there is any real difference in my scenario - leaseholders are owners of the property and the function of the management committee is the same. That is to look after the common parts for the benefit of the holders.
Tax/VAT avoidance - if only it was!
As a diversion! don't school governors have similar responsibilities?
Geoff
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Posted By Neil Pearson
I did some work for someone appointed by a resident's board as a managing agent. They wanted me to carry out some very specific reports for them, but from our discussions, we decided that their management of the building was "work", even though that work was about looking after residents. HSWA definitely applied as far as we were concerned.
The trickiest part of the situation was the same as an earlier thread about students halls: which plant and equipment is the building responsible for, and which is the residents' responsibility? Nearly drove me mad trying to unpick all the issues there.
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Posted By Ken Taylor
School Governors certainly do, Geoff, but they are employers. HASAWA places duties upon employers, employees and persons in control of workplaces. The doubts arise where there is no employment, those in control are householders and the premises are their own residential property. I doubt whether this was the intention in drafting HASAWA and wonder whether it has been interpreted this far. By comparison, if all frontage owners for an 'old style' private access way or road get together and decide to keep it to a certain standard of condition would they be subject to HASAWA if (a) they don't call themselves anything; or (b) they call themselves something like the Old Road Residents Association? Is it only if they form a limited company that HASAWA 'kicks in' and, if so, where is this within legislation or guidance? Is the fact that they are forced to be a limited company by the planners and/or developer an unfair contract term if it makes them subject to legislation that would not have applied otherwise? Interesting isn't it?
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Posted By Geoff Burt
Ken
I'm not sure being Limited is relevant to what we are talking about here. Your people have formed a group and have elected directors (representatives of the group) and are employing people to do work (on behalf of themselves but, and this is important, and others) - surely your group are now employers?
Geoff
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Posted By Jeff Manion
As I understand that there is a piece of case law "westminster V Select Management" where as the "common areas" are workplaces and therefore the coomon areas governed by HASAWA.
Persons in common areas "employed" milkman / postman etc under HASAWA.
Persons "employed" to work within domestic area under HASAWA.
If a simple statement policy of who is ressonsible should suffice (or not as case may be)- HSE web page has or can lead to generic policy statements.
When repairs are required, the management company should "employ" competent persons. Whether under CDM or not.
It seems fairly simple under HASAWA, not saying it is, will complicate if "incident" and a claim is made.
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Posted By Ken Taylor
Not employing people, Geoff, but engaging a contractor to cut the grass or a builder to repair a wall - just as an individual house owner would or two might for work on a semi-detached. I don't become an employer if I get a plumber in. Two neighbours don't if they get one in for their combined drain. If there are six houses on the same drain, I don't believe this makes them employers so the only difference with my question is that the neighbours are shareholders in a limited company and one of them has been called a Director.
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Posted By Jack
My view, for what it's worth is that HASAWA does not apply (probably!). There is no employer/employee relationship, which rules out Section 3.
There is, of course, Section 4. ie those who have control of non-domestic premises made available as a place of work. Now it would seem it is made available to the grass cutters as a place of work.
Section 4.4 says any reference to a person having control is to a person having control in connection with the carrying out on by him of a trade, business or other undertaking. Is it an undertaking?
When HSE was debating whether school governors had duties under Section 4 in Community Schools (where they are not the employer) their lawyers advised them that the school was probably not the governors 'undertaking' (hence they revised the guidance books) (NB governors do probably have duties under S36).
So, is it an undertaking? I'm less clear now than when I started writing!
On Geoffs point that HASAWA applies to charities, parish councils etc, surely that's only if they are employers. In practice most will be (eg even the smallest PC employs a clerk)
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Posted By Geoff Burt
I don't know Ken, obviously to most of the contributors it is a grey area. Perhaps you are right, it could be different because a limited company has been formed.
Like Jack, I think I'm more confused now than before this started!
Are school governors employers or employees?
Are council members employers or employees?
Another example is a housebuilding limited company. They do not employ anybody directly other than the MD. All the trades, architects etc are brought in as and when needed for each site as sub-contractors. From an earlier definition put forward the company is not an employer! And yet the company is directing the contractors.
Geoff
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Posted By Jason Gould
Its funny and coincidental I should come accross this thread as, very close to me a new large housing project is being developed.
I have walked through the part completed project many times admiring (green eyed monster) the houses.
In the centre of the estate the developers have provided a banksway with a stream running through it going under small tunnels where the road intercepts.
As the weeks have gone bye I have noticed the litter starting to gather and the grass is getting a little longer.
I can imagine such a commitee would eventually need to be established for this estate.
I remember thinking to myself nice estate but what happens 5 years down the line.
I think a postman has the right to sue householder if he has accident in his garden etc.
These commitees are Overseeing the general repairs etc for roads and verges etc.
Like it was said earlier I think they are going to bear the HSWA section 4 (at least) by acting as agents for the rest of the estate.
Legally I havn't much to contribute to this thread with regards to legalities. But am very interested in how this is resolved.
What I would say is as follows:
Can not a whole estate class itself as a domestic premise i.e. Roads include and grass verges.(sorry just forgot about public right of way)
Do subies not have to have their own insurance with regards to slate falling of roof when working on dwelling etc. And they are responsble for the work they do.
Are original builders or desighner not responsible in some way i.e. planners
Do residents have to aggree to these contracts. (I guess they do in some cases)
Can they not do what some companies do and turn over the land being worked on to the contractor for period of work being done.
I thought as long as you do not get involed in the working proccesses and have assured yourselves you have employed the suitable contractor their was some escape clause.
This is definatly one for the solicitors or even Barristers.
I know personaaly I would claim against the subies insurance.
Legally I have hunch HSE would go after subie or original designers of estate.
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Posted By Jack
I'm still confused but I can shed some light on some of the points that have been mentioned!
Let's not confuse things by bringing construction projects into the equation. CDM give most parties pretty clear responsibilities eg Clients (and developers are clients and have client responsibilities), designers etc. (I assume the house building limited company would be the client?)
School governors (as a body) are employers in Foundation schools and Voluntary Aided Schools.
School governors are not employers in Community schools and Voluntary Controlled schools (they probably have Section 36 duties and that's all).
Council Members are not employees. They make up as a body the Council which is the employer. As a body the Council has Section 2 duties. Prosecutions could presumably (it hasn't happened yet) be taken against individual members under Section 36 but this would seem unlikely to me as Councils have a monitoring officer (usually the most senior lawyer) who is responsible for addressing any situations where members act illegally (this includes breaches of h&s law) eg decisions which would lead to breach of law, so they should not be able to breach law if officers have done their job. The introduction of cabinets ans portfolio holders may muddy the waters but they should still be bound by the same rules.
Senior managers do have Section 37 duties, and that has been tested in court.
I don't think the whole estate could be classed as 'domestic premises' - see definition in HASAWA which excludes this.
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Posted By Jason Gould
I was trying to avoid mentioning CDM. Just thought that their may be some legal similarites with regards to the control of contactors, sub contractors etc.
I was merely (Hyperphetically) thinking of a toddler falling of one of the road edges (6-7 ft) into the man made stream (full of rocks) 5 years from now when this commitee may be responsible for those areas. And other inherant dangers left behind by developers that could affect work later on.
As I said I have no legal experiance and none of CDM. I am just a mere student trying to refresh some points before enbarking on Dip 2.
I like the rest of us am eagerly awaiting the input from anyone with Legal experiance of these situations.
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Posted By David Brede
Surely the members of the residents management committee have the responsibility for the maintenance of the common areas of an estate so even if the directors are not paid in hard cash they still derive a benefit - nicely cut lawns etc? So a contractual arrangement exists even if unwritten. Therefore HASAW applies to them as employers and any persons employed by them either individually or as subcontractors. Members of the public who traverse any right of way over the estate would, in the event of an accident, sue them either directly or via their insurer for damages and possibly criminal negligence if this could be proved.
So the management committee should take out insurance that covers their various liabilities to avoid all the co owners of the common bits of estate being sued individually.
As this cannot be a new thing their must be some specific case law on this.
David
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Posted By Neil Pearson
This is great! So, what's work and who's an employer? To take Geoff's housebuilder, you don't become an employer by hiring him to build an extension, and you're not at work. But he is at work, and your home is his workplace.
The housebuilder normally is an employer under HSWA. This has nothing to do with who is on the payroll of whom, because we can have more than one employer. It's a question of directing someone's work for a significant amount of time. You don't employ the housebuilder when he builds your extension - the relationship is customer/supplier. But he directs his workers all day every day, even though they are self-employed in the "Inland Revenue" sense.
I would say that people appointed to manage a residential building are at work, and the building is their workplace while they are carrying out this function. HSWA would therefore apply. They are directing contractors etc on other people's behalf, so that has to come under HSWA.
As for who's an employer, most employers are not real people (though they are legal people). The management company is the employer, and it has employees: the directors.
There has for a long time been a discrepancy between the meaning of "employer" under H&S law, and the meaning given by the Inland Revenue. Now the meanings are coming back together, as the Inland Revenue regard anyone who directs your work for a significant time as your employer.
Does this make sense? This is my understanding, and of course I may be wrong, but it fits every scenario I think.
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Posted By Ken Taylor
I agree with you, Neil, except that uncertainty arises when we come to the example in my question - where we are dealing with home owners looking after their own property and chosing one or two of their number to organise things rather than all meeting together to do so - as would be the case for common areas where no company has been formed. The relationships here are client/contractor and shareholder/director and not employer/employee and the only workplaces seem to be transient ones of contractors when they are cutting grass, repairing walls, etc. Perhaps a determining consideration would be whether these temporary workplaces are 'ring-fenced' to each contractor's control for the period of work?
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Posted By Neil Pearson I would still think that the HSWA applies, and that the directors would be seen as being at work, with the company as the employer. The definition of the workplace is secondary, I think, but like you say, common areas would be workplaces for the unpaid directors while they were going about their roles. But I'm not really certain of my ground here any more than others in this thread. I've just had a quick look on Google and came up with the Association of Residential Managing Agents at http://www.arma.org.uk/flash.html. I saw some guidance documents there which suggest they are as confused as we are, but they do give some guidance on residents management companies. Then I found the Federation of Private Residents Associations at http://www.fpra.org.uk/. This doesn't seem to have free guidance on the web site. I'm sure we could dredge up more if we took some time. Isn't there some sort of body for managing agents and residents' associations? Surely this question must have been asked a thousand times before in certain cicles? We just have to find those circles! If not you might do well to get a barrister's report, if you can find a barrister with relevant experience.
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