Hi everyone

My client is a registered property management company that has 3 Directors. The Directors live on site amongst the other tennants (72 flats across the estate). Some of the tennants let direct from the company whilst other flats are being sub letted through the property owners.

My question is who is responsible for managing gas safey and legionella. Is it the property management co. for the whole estate?

What responsibilities do the other landlords have where they sub let directly?

Thanks

DHM

Thanks Hsquared14,

This situation is complicated as there is a mixture of overall landlords (the property management co.) for the whole estate and about 20% of the individual flat owners sub-let and become landlords themselves.

Is anyone else able to shed some light on this?

Thanks

DHM

Thanks for your comprehensive responses.

Edited by user 18 July 2017 08:06:48(UTC)  | Reason: spell check

Yes I know what the HSE website guidance says on the matter. It is guidance, not the law. Which is why I add 'controversial'. This is off-topic somewhat, and probably not that relevant to the original question, but is a full explanation for anyone who cares.

HSE web pages added the section 53 bit as an afterthought in 2015. For most people reading this guidance who wouldn't know or investigate, this is enough to make it sound scary and official. HSAWA s53 is 'general definitions'. Eventually, under 's', it says:  “self-employed person” means an individual who works for gain or reward otherwise than under a contract of employment, whether or not he himself employs others;

The key word is 'works'. If a  private landlord is not 'working' as a landlord, then they are not self employed. No matter how much the HSE would like it to be. 

Many (if not most) private landlords are not 'working' or in business, they are what HMRC tax office call 'passive investors'. Specific tax guidance says, that unless incorporated, or spending considerable time managing, obtaining and maintaining properties for rent, landlords are not in business, and therefore not self-employed. If they were self-employed, they would be liable to pay Class 2 NICs. See NIM23800 which gives examples of different landlord scenarios. HMRC trumps HSE in matters of employment status.

I am sure the HSE know (and don't care) about this 'misleading' because it would be embarrassing to about-face after the water 'protection' industry have already fleeced thousands of private landlords for legionella risk assessments, when actually, most are not duty holders under HASAWA, COSHH and therefore legionella.

The HSE are never going to have to justify this because (a) the risk is so low as to be unimportant - the HSE go on to say they will not actively enforce in domestic properties in their FAQs. A good thing as there are at least 2 million such single let private domestic rentals. (b) They have no jurisdiction to enforce on this in private domestic properties where there is no 'employer'. (c) If there was to be a highly unlikely legionella event leading to attempted enforcement action under COSHH - the courts would just take one look at 'duty-holder' and definitions above, and throw it out - assuming the HSE solicitor hadn't stopped it first.

https://www.gov.uk/hmrc-internal-manuals/national-insurance-manual/nim23800​​​​​​​