Health and Safety

Introduction

This is a summary of some of the most significant health and safety regulations that apply to blocks of flats. All these regulations apply to houses that have been converted into flats.

Leaseholders should not be unduly concerned about health and safety matters but should be aware that their landlord or managers have the responsibility to comply with a wide range of fire safety and health and safety regulations relating to the building they manage. This is to protect the health and safety of people living in, visiting or being employed in the property. This responsibility would also apply to a Resident Management Company (RMC) including a Right to Manage Company (RTMC).

Although in some circumstances leaseholders might object to costs relating to health and safety the landlord or manager must not fail to comply with regulations due to expense as if there were to be an accident or injury the costs and consequences could be far greater. At times, the landlord or managers may have to spend significant amounts of service charge funds to ensure the block complies with health and safety regulations. In most cases the terms of the lease will allow the landlord or manager to recover costs of carrying out health and safety measures in full from the service charge or reserve funds.

What risk assessments are required for communal areas?

It is a legal requirement under the 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 the communal areas. Although some landlords or managers may consider the communal areas of flats are not a place of work, the Courts and the Health and Safety Executive (HSE) have included communal areas in health and safety regulations. This means that if any employees such as contractors, cleaners, gardeners or even staff of the manager enter these areas then a risk assessment will be required.

In this context, communal areas do not just mean the internal parts of the building that leaseholders frequent, as the roof and other external parts would also be considered to be communal areas. When the landlord or managers carry out a risk assessment, they will need to investigate all areas including the grounds, plant rooms and lift motor rooms. If there is no staff of the landlord or manager employed at the block, then there is no requirement to keep records of risk assessments but it would be regarded as good practice to do so. If an accident occurred and the landlord or manager had no evidence of a risk assessment being carried out, a prosecution for negligence would be more likely to succeed. It is strongly recommended that the risk assessment should be reviewed at least annually.

Fire safety

The Regulatory Reform (Fire Safety) Order (RRO) 2005 requires employers, building owners and occupiers as ‘responsible persons’ to carry out, implement and maintain a fire safety risk assessment. Individual flats are not covered by the RRO but all non-domestic parts of the premises, which include the common or shared parts of blocks of flats or houses in multiple occupation are covered by the RRO and may be inspected by the local Fire Authority.

Under the RRO, Fire Officers have the authority to enter any block of flats to inspect the building and Fire Authorities have a statutory duty to ensure compliance and to enforce the requirements where necessary. They may ask to see the risk assessment and issue enforcement notices to improve fire safety if they consider this is needed. Any failure to implement the notices may also lead to the landlord or managers being prosecuted.

The basic requirement of the RRO is that the ‘responsible person’ must carry out suitable and sufficient fire risk assessments to identify and provide adequate fire precautions and procedures to ensure the safety of all people living in, visiting or being employed in the property.

In addition to the responsible person, the requirements of the RRO must be followed by any person having control of the premises, such as the landlord or manager. As in other health and safety legislation the RRO is not entirely prescriptive which means there is a degree of self-regulation. The core principles of the RRO are accountability, effective governance, transparency and regard for those likely to be affected. Although the risk assessment needs to cover many areas it should concentrate upon the safety of the occupiers.

A fire risk assessment should be regarded as an evolving document that requires regular update and review. It should be revised when changes have taken place or are about to take place with regard to the size, layout, use and occupation of the premises. This applies in particular when physical alterations to the communal areas take place. If there is any reason to suspect that the risk assessment is no longer valid the responsible person must review and apply the outcome of the revised risk assessment in order to ensure that the required changes are implemented. These are the most significant areas the risk assessment should consider:

the safety of the people within the building;
ignition sources and flammable materials;
smoke detection;
fire-fighting equipment, such as extinguishers;
construction items that resist smoke and fire, such as fire doors; and
escape routes and evacuation procedures.

This is not an exhaustive list but it gives an indication of the wide range of measures that need to be considered when carrying out a fire risk assessment. The government-approved code of practice says copies of the fire risk assessment should be made available to leaseholders on request.

The main causes of fire and preventing fire

Research shows that the vast majority of fires in blocks of flats start within individual flats, rather than the communal areas, with electrical faults from overloaded sockets being the main cause. Cigarettes are another significant problem as fires can start when they are accidently left burning. Other common causes of fire are frying pans on a lighted hob and candles being left unattended.

In some leasehold properties there are communal areas where furniture and furnishings are provided by the landlord. Leaseholders should be aware that these must meet levels of fire resistance set out in the Furniture and Furnishings (Fire Safety) Regulations 1998 and leaseholders may wish to consider these regulations with regard to their own furniture.

The most effective protection from fire is prevention and although landlords and managers have a duty to prevent fires in communal areas, leaseholders should still try to ensure their home is as safe as possible.

Smoke detectors are the most effective way of preventing fires from spreading. They also give warning of potential fire risk and allow extra time for escape in the event of a fire taking hold. It will be the responsibility of the landlord or managers to ensure there are smoke detectors in communal areas but leaseholders may wish to consider installing them in their own flats.

Working at height

The Work at Height Regulations 2005 is intended to try to prevent death and injury caused by a fall from height. If you are an employer or an organisation that requires employees to work at height, such as landlords or property managers, these Regulations will apply. Employers and those who arrange or supervise any work at height activity must ensure work is properly planned, supervised and carried out by competent people. This includes using the appropriate type of equipment for working at height.

Any work at height should be avoided if it is practical for it to be carried out in any another way. It if cannot be avoided, then landlords and managers must assess and plan for the work to be carried out with the least risk. Work at height can include works such as changing light bulbs, cleaning, and clearing gutters. Employees have a general legal duty to take reasonable care of themselves and others who may be affected by their actions, and to co-operate with their employer to enable health and safety duties and requirements to be complied with.

Working at heights can apply to a relatively small distance if someone could be injured by falling from it. If window cleaners or other contractors working at height visit a block of flats, then a risk assessment must be made. It would usually be the contractor who will have the responsibility for assessing risk but the landlord or their managers would also have a duty to ensure that this has been carried out. The landlord could be an RMC or RTMC and therefore directors of these companies will have some responsibility even if they have appointed managers to delegate this duty to.

Electrical safety

If electrical equipment is supplied by the landlord or manager to a contractor, for example a cleaner, then it must be regularly tested, properly maintained and noted as safe. All electrical equipment supplied must be marked with an appropriate CE symbol and appliance instruction booklets should be made available. The CE marking is the manufacturer's declaration that the product meets the requirements of the applicable EC directives. A visual inspection and a more formal test should also be carried out at the intervals recommended by the Electrical Safety Council (ESC).

Landlords and managers must arrange for fixed wiring and portable electrical equipment in common parts to be tested in accordance the Electricity at Work Regulations 1989. They must also arrange for regular thorough inspections and maintenance of lifts due to the Lifting Operation and Lifting Equipment Regulations 1998 and SAFed Guidelines on the supplementary tests of in-service lifts.

Gas Safety

The Gas Safety (Installation and Use) Regulations 1998 give landlords and managers the responsibility to ensure gas appliances, fittings and flues are maintained and are in a safe condition at all times.

The landlord has three main responsibilities which are summarised below:

Maintenance - the pipework, appliances and flues must be maintained in a safe condition and all gas appliances should be serviced in accordance with the manufacturer’s instructions. If these instructions are not available it is recommended that these appliances are serviced annually, unless advised otherwise, by a Gas Safe registered engineer.
Gas safety checks - an annual gas safety check must be carried out on every gas appliance and flue as this will ensure gas fittings and appliances are safe to use.
Record - the leaseholder must be provided with a record of the annual gas safety check within 28 days of it being completed. Any new occupier of leasehold property must be given a copy of this record before they move in. The landlord must retain copies of gas safety records for at least two years.

All installation, maintenance and safety checks must be carried out by a Gas Safe registered engineer. If the leaseholder has their own gas appliance that was not provided by the landlord, then the landlord or manager is responsible for the maintenance of the gas pipework but not for the gas appliance itself. Landlords should ensure that leaseholders are informed where they can turn off the gas and what to do in the event of a gas emergency.

Legionella

Legionella is a bacterium found in water systems, which can cause Legionnaires’ disease in certain circumstances. There is a slightly higher risk of exposure to legionella if the premises have a cooling tower or evaporative condenser. The landlord or manager has a duty to control the risks of legionella in any water pipes, tanks and taps in communal areas.

Landlords and managers must comply with the 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 or where there are communal tanks.

However, cold water tanks, taps and showers within individual flats are the responsibility of the leaseholders, unless in the unlikely event that the lease gives the landlord or managers responsibility for maintaining them. The starting point is a risk assessment, usually arranged by the landlord or managers who will need to employ an expert in this matter. If risks are identified then a written action plan should be drafted and kept by the landlord or managers. If any significant risks are identified by the assessment it should be reviewed annually.

Control of Substances Hazardous to Health (COSHH)

A COSHH assessment concentrates on the hazards and risks from substances in the workplace which applies to any flats where staff work or visit. The most hazardous substances found in the communal areas of blocks of flats are cleaning materials and chemicals used for gardening. However, it should be noted that hazards and risks are not limited to substances that might be labelled as ‘hazardous'. Hazardous substances include;

Substances used directly in works on the building e.g paints and adhesives;
Substances produced during works on the building e.g fumes and particles;
Naturally occurring substances such as excessive dust; and
Biological agents such as bacteria.

There is a duty on the landlord or managers to assess the risks from any materials stored in the communal areas. Most materials carry labels that clarify any potential hazards and manufacturers also provide information on how to handle and store these substances. It is the duty of the landlord or managers to decide what instructions need to be given to anyone who might handle the materials, and what protective clothing, if any, is needed. If a contractor is supplying their own materials, then the landlord or manager must obtain a COSHH risk statement from them to ensure the above has taken place.

Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR)

The RIDDOR require serious work related accidents, diseases and dangerous occurrences, including ‘near misses’ to be reported. The regulations require ’responsible persons’ to report deaths at work, major injuries caused by accidents at work, injuries to members of the public that require hospital treatment, injuries arising from accidents and dangerous occurrences.

Additionally, the regulations require registered gas fitters to report poorly maintained and potentially dangerous gas installations.

Even if a landlord or manager uses a self-employed contractor to work at a block of flats, it is still their duty to report an accident to the contractor. The duty also applies if a member of the public is injured at the block. There is a national incident centre where reports of fatal or serious injuries should be made. Leaseholders should be aware that the landlord or manager will need to report all other accidents to the Health and Safety Executive (HSE) website which is hse.gov.uk/riddor

Asbestos

Landlords and managers have a duty 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. It may be necessary to carry out a survey to discover if any asbestos is present in the building. If it is found, it is a good practice for the landlord to keep a register and to have 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 to inform any contractors carrying out works on the building if the landlord or managers are aware that asbestos is present.

When a survey reveals that works on a building must be undertaken in areas where asbestos is likely to be present the works will be in one of the three categories below:

Licensed work: this involves the most dangerous materials containing asbestos, such as asbestos lagging and insulating board. Any organisations working at this level must be licensed by the HSE and must notify the HSE of any licensed work they intend to carry out.
Non-licensed work: for work to be exempt from needing a licence there can only be ‘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 be appropriately trained and competent.
Notifiable non-licensed work: this is work of sporadic and low intensity that does not exceed the control limit 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. This type of work must be notified to the HSE.

What are The Construction (Design and Management) Regulations 2007?

These Regulations place legal duties on managers and everyone else involved in major works. These Regulations are intended to improve the overall management and coordination of health, safety and welfare throughout all stages of a construction project. For those works or projects that are likely to last for more than 30 days or involve more than 500 work days of construction, additional management duties must be followed and details of the project must be notified to the regulators.

The main aim of the regulations is to integrate health and safety into the management of the project and to encourage everyone involved to work together to:

improve the planning and management of projects from before they start;
identify hazards at an early stage, so they can be eliminated or reduced at the design or planning stage and allow any remaining risks to be properly managed;
concentrate on areas where the most can be achieved in terms of health and safety; and;
discourage unnecessary bureaucracy and paperwork.

The above means that hazards and their associated risks must be identified and, where possible, removed. Any remaining risks then need to be reduced, or, if this is not feasible, measures need to be agreed and put in place to try to control these risks. All those involved in a construction project are required co-operate to allow other parties with responsibilities to comply with their respective duties under the regulations. The regulations identify specific roles for all of those involved in a construction project and they also set out when each of the regulations will apply.

Health and Safety enforcement

The body which enforces most health and safety matters is the Health and Safety Executive (HSE), although some matters are enforced by local authorities and the fire service.

The HSE can issue improvement notices requiring landlords to take action to reduce risks. For example they might recommend installing railings or handrails to prevent falls, or request prohibition notices to prevent an activity if they consider there is a risk of serious injury. If the landlord or manager fails to act on the HSE's recommendations it may result in prosecution.

The Corporate Manslaughter Act of 2007 clarifies that directors of RMCs or RTMCs can be prosecuted under criminal law for serious breaches of Health and Safety law. Directors of RMCs and RTMCs will always retain responsibility for the health and safety of their block, whether they delegate this to managers or not. The Health & Safety Offences Act 2008 raised the maximum fine for offences in the lower courts from £5,000 to £20,000. It also increased the number of offences for which an individual can be imprisoned.

Smoke-free regulations and the impact on blocks of flats

Legislation now requires the internal communal areas of blocks of flats to be free from cigarette smoke and even external structures that are less than 50% open sided must be kept smoke-free. Residents who smoke in the communal areas can be prosecuted by the local authority and fined up to £200. Landlords and managers must display no-smoking signs that comply with the regulations in all of the internal communal areas. There are different regulations about signage for England and Wales but it is an offence for the landlord or managers not to display appropriate signs and this is also punishable by fines. If the block of flats has an office for on-site staff, such as a porter or scheme manager, then that must also be kept smoke-free.

Smoke-free regulations and the impact on flat owners

Individual flats are exempt from the smoke-free regulations as they do not prevent leaseholders or their visitors from smoking in the privacy of their own homes. If anyone is found smoking in the communal areas of a block of flats the landlord, managers or directors of a RMC or RTMC have duty to ask them to stop. Even if no one objects there is a legal duty for them to challenge smokers and if they fail to do this, they can be fined up to £2,500.

Leaseholders will need to be aware that if they want a member of the landlord, manager or contractors staff to visit them in their flat, the law gives the employer a duty to protect their health and safety from smoke. This means many organisations may now have a policy where they allow employees to refuse to visit or work in a flat where the resident smokes.

What is the Housing Health and Safety Rating System?

The Housing Health and Safety Rating System (HHSRS) has replaced the fitness standard as a method of assessing housing conditions. Rather than a fixed standard, it uses a risk assessment approach to minimise risks from hazards to health and safety. The HHSRS applies to all properties, regardless of ownership.

The HHSRS covers all of the key issues that affect health and safety. It provides an analysis of how hazardous a property might be and includes evidence and statistical information to assist surveyors in making their judgements.

The key principle of the HHSRS is that a property, including the structure and associated outbuildings, gardens, yards or other amenity spaces, as well as means of access, should provide a safe environment for the residents and any visitors. The survey process considers the effect of any hazards in the property. Hazards are rated according to how serious they are and the effect they are having, or could have, on the occupants, ie ‘the effect of the defect’.

Although it was primarily directed towards public sector landlords, Environmental Health staff working in local authorities use the HHSRS to raise standards in the private sector by requiring owners to take action as necessary to remove or minimise hazards in their properties. This means the HHSRS should prove helpful to leaseholders whose landlords are a private company.

Please see the LA information sheet 101 Glossary for a precise explanation of the terms used in this information sheet. This information sheet is a brief summary of an extremely wide subject area and members of The Leaseholder Association who have concerns about any specific health and safety issues should contact The LA for further advice.

Disclaimer: This is a very general explanation of the subject. Where issues are not governed by statute the information is our opinion or best practice. You are advised to seek professional advice before acting on the guidance contained herein. Whereas The Leaseholder Association endeavours to ensure that published information is correct, it does not warrant its completeness or accuracy. The Leaseholder Association assumes no responsibility or liability for any injury, loss or damage incurred as a result of any use or reliance upon the information and material contained herein.