1. DEX Property Management Health and Safety

There are several different overlapping regulatory regimes and statutory requirements which apply minimum health and safety standards to property guardianship. Slightly different regulatory requirements will apply depending on the occupancy status of the Guardians, the type of building they occupy and the identity of the landlord. However, the vast majority of health and safety requirements apply to licences in precisely the same way that they apply to tenancies.

Some regulations require a specific action to be performed by the person who owns or manages a property. Other regulations focus on the outcomes which property managers need to achieve.

This section of the document addresses key aspects of the obligations placed on Guardian Companies, and how civil remedies can arise out of poor health and safety practices, additional to those considered above.

1.1 Section 5 Occupiers Liability Act 1957.

An occupier of premises owes a duty to take such care as is reasonable in all the circumstances of the case to see that a visitor will be reasonably safe in using the premises for the purposes for which he or she is invited or permitted by the occupier to be there: section 2 Occupiers’ Liability Act 1957. For a person to be an ‘occupier’ of premises, he or she must have a sufficient degree of control over the premises to put them under a duty of care to visitors: Wheat v Lacon & Co. Ltd [1966] AC 552, HL. Where an owner has let the premises to a tenant, the tenant is the occupier but where the owner has granted a licence to someone, the owner remains the occupier for the purposes of the 1957 Act. Accordingly, a Guardian Company owes the duty of care to a Guardian who is a licensee; it also owes the duty of care to a Guardian who is a tenant, in respect of that part of the building that has not been let.

A Guardian Company would be liable for any injury caused by a danger that was known or ought to have been known to be present in the premises.

1.2 Housing Health and Safety Rating System

Since 6 April 2006 the Housing Health and Safety Rating System (“HHSRS”) has been the primary legal framework for the enforcement of housing standards. The HHSRS is a framework for risk based analysis and enforcement in all residential property – it applies to buildings or parts of a building which are occupied or intended to be occupied as dwellings (whether under a tenancy or a licence).

The provisions of the HHSRS are enforced by local authorities, acting through their environmental health departments.

There are 29 different hazards recognised by the HHSRS. These are classified under four separate groups.

A. Physiological Requirements

  • Hydrothermal Conditions

1 Damp and mould growth

2 Excess cold

3 Excess heat

  • Pollutants (non-microbial)

4 Asbestos (and MMF)

5 Biocides

6 Carbon Monoxide and fuel combustion products

7 Lead

8 Radiation

9 Uncombusted fuel gas

10 Volatile Organic Compounds

B. Psychological requirements

  • Space, Security, Light and Noise

11 Crowding and space

12 Entry by intruders

13 Lighting

14 Noise

C. Protection against Infection

  • Hygiene, Sanitation and Water Supply

15 Domestic hygiene, Pests and Refuse

16 Food safety

17 Personal hygiene, Sanitation and Drainage

18 Water supply

D. Protection against Accidents

  • Falls

19 Falls associated with baths etc

20 Falling on level surfaces etc

21 Falling on stairs etc

22 Falling between levels

  • Electric Shocks, Fires, Burns and Scalds

23 Electrical hazards

24 Fire

25 Flames, hot surfaces etc

  • Collisions, Cuts and Strains

26 Collision and entrapment

27 Explosions

28 Position and operability of amenities etc

29 Structural collapse and falling elements

1.2.1 Application of the HHSRS

The nature of the property guardian business creates specific challenges for complying with the HHSRS. For example, a Guardian Company will need to consider how to avoid excessive cold and how to provide suitable hygiene facilities. As considered below, in assessing whether there is a hazard, it is not relevant under the HHSRS that a property was designed as a commercial property, or that the occupiers are not paying very much for their accommodation, or that it is only a temporary arrangement for them. These factors are, however, relevant to the enforcement action which an authority may decide to take.

1.2.2 Assessments under HHSRS

Environmental Health Officers (EHOs) make assessments under the HHSRS. In carrying out the assessment, they are required to consider the risk to health which may be caused to a hypothetical occupier. The attributes of the hypothetical occupier vary depending on the hazard concerned but, in general terms, the EHO must consider occupiers who are believed to be at greatest risk from the hazard (e.g. because of old age).

EHOs are required to consider what hazards are present in a property, and then to go on to assess both what is the likelihood of an “occurrence” resulting from that hazard and then the severity of harm that might result from that occurrence. These assessments are numeric and are multiplied to generate a ‘hazard score’.

A hazard score is calculated for each potential hazard. A high hazard score could signify a low but real risk of a catastrophic injury occurring, or a higher likelihood of a moderate injury occurring.

Where the ‘hazard score’ is above a specific level, there is a ‘category 1 hazard’. Where there is a hazard present, but the score does not reach the specified level, this is a ‘category 2 hazard’.

1.2.3 Enforcement under the HHSRS

If local authorities become aware of a category 1 hazard, they are obliged to take enforcement action; there is a discretion about whether to take any further action in regard to category 2 hazards.

The possible enforcement action that can be taken include hazard awareness notices, improvement notices, prohibition order and emergency remedial action.

A hazard awareness notice does not require the owner of the property to do anything and is merely a warning of the existence of a hazard. An improvement notice sets out a schedule of works that must be carried out to the property within a set time period. Failure to comply with an improvement notice without a reasonable excuse is a criminal offence.

An authority may suspend the effect of an improvement notice or a prohibition order for a period of time or until the happening of a specified event.

Prohibition orders are a more severe sanction as they prohibit the use of the property or a part of it for specified purposes. Where it is necessary to take urgent action in respect of a category 1 hazard, a local authority may also use an emergency prohibition order. Failure without reasonable excuse to comply with a prohibition order is a criminal offence.

Emergency remedial action allows local authorities to take urgent action themselves in serious cases where there is a risk to the health of the occupiers.

An authority may suspend the effect of an improvement notice or a prohibition order for a period of time or until the happening of a specified event.

As noted above, in assessing the hazard an EHO must consider the position of a hypothetical occupier, who will usually be much more vulnerable to the effect of a hazard than a Property Guardian. In deciding what action to take, the EHO considers the position of the actual occupier, i.e. the Property Guardian’s age and health and own views about the property and the length of his proposed occupation of it. Accordingly, even if the hazard is category 1, the authority may consider that immediate action is not required. For example, a steep staircase may mean that there is a significant risk of an elderly occupier suffering a serious fall but the authority may consider that a young and fit person is unlikely to find the staircase problematic so that only a hazard awareness notice is required. Similarly, where an improvement notice is the appropriate course of action to address a hazard, if it is clear that the Guardian is only going to be in occupation for a short period of time before the property is completely redeveloped, the authority might consider suspending the notice.

That said, there is clearly a basic standard of accommodation which is required even if the Guardian’s occupation is for a very short time. If an authority consider that it is wholly unsuitable for a person to be sleeping in a building, e.g. a warehouse or open-plan office, or if there are no facilities for cooking or personal hygiene, an authority will almost certainly take enforcement action.

A person against whom any enforcement action is taken has a right of appeal against it to the First-tier Tribunal (Property Chamber).

1.3 Gas Safety

1.3.1 HHSRS

Exposure to carbon monoxide and fuel combustion products is a hazard under the HHSRS and any such hazard caused by a gas appliance or installation can be dealt with by the local authority using their enforcement powers under Housing Act 2004.

1.3.2 Gas Safety Regulations

The Gas Safety (Installation and Use) Regulations 1998 uses landlord and tenant terminology but places the same duties on landlords and licensors.

The regulations require the landlord to ensure that gas appliances, pipework and installations are checked annually to ensure that they are safe. The testing can only be carried out by a Gas Safe registered installer and it is the responsibility of the property Guardian Company to check this.

When a fault is found in any gas appliance, the installer must inform both landlord and tenant. Remedial action should be taken. If the appliance is dangerous the engineer should disconnect the appliance and put a sticker on it showing it has been condemned. Guardians should be informed that, if a fault with the appliance is reported by a contractor directly to the occupiers, or the occupier believes there is a leak or fault with an appliance, it is the occupier’s responsibility to inform the Guardian Company immediately.

Guardian Companies should maintain a record of when each gas appliance was checked, the defects found and the remedial action taken. The records for the last 2 years should be available for inspection upon request, usually by the trading standards officer or the environmental health department.

A copy of the safety certificate must be given to the occupiers within 28 days of the start of the tenancy/licence. If no safety certificate is provided or does not exist, then the landlord commits a criminal offence. If the occupier is an assured shorthold tenant, it will also not be possible to serve a valid section 21 notice if no gas safety certificate has been given (see Termination of Assured Shorhold Tenancies, above).

1.3.3 HMO Regulations

If the property is an HMO, the Management of House in Multiple Occupation (England) Regulations 2006 require the person managing the HMO to supply the latest gas appliance test certificate it has received in relation to the testing of any gas appliance to the local authority within 7 days of receiving a request to do so. Failure to do so without a reasonable excuse is a criminal offence. It is therefore essential to keep good records in addition to carrying out the tests. Since October 2018, each local authority has it own set of requirements in which are made clear on the authorities website which must be met within a time frame.

1.4 Electrical Safety

1.4.1 HHSRS

Electrical Hazards are covered by the HHSRS and any electrical hazard can be dealt with by the local authority using their enforcement powers under Housing Act 2004.

1.4.2 HMOs

If the property is an HMO, the Management of Houses in Multiple Occupation (England) Regulations 2006 impose a duty to obtain an electrical installation inspection report and certificate every five years.

1.4.3 Electrical Safety Regulations

Once sections 122 and 123 Housing and Planning Act 2016 are in force, the Secretary of State will have power to make regulations imposing duties on landlords and licensors of residential accommodation to ensure that electrical safety standards are met. Local authorities will primarily be responsible for enforcing these duties, but the regulations may also provide for terms to be implied into a tenancy or licence agreements to enable enforcement by the tenant or licensee.

1.5 Fire Safety

1.5.1 HHSRS

Exposure to uncontrolled fire is a hazard under the HHSRS. Any fire hazard can be dealt with by the local authority using their enforcement powers under Housing Act 2004.

1.5.2 HMO Management Regulations

If a property is an HMO, The Management of Houses in Multiple Occupation (England) Regulations 2006 require the manager of the HMO to ensure that all means of escape from fire in the HMO are kept free from obstruction and maintained in good order and repair. The manager must also take all such measures as are reasonably required to protect the occupiers of the HMO from injury, having regard to the design of the HMO, the structural conditions in the HMO and the number of occupiers.

The Regulations also impose duties on the manager of the HMO to ensure that any fire-fighting equipment and fire alarms are maintained in good working order.

Managers of HMOs must ensure that all notices indicating the location of means of escape from fire are displayed in a position that enable them to be clearly visible to the occupiers.

1.5.3 Smoke and Carbon Monoxide alarms

The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 impose a duty on landlords and licensors to ensure that smoke and carbon monoxide alarms are fitted in properties let by them. The duty applies where a person grants a tenancy or licence to a person to occupy the property as his only of main residence. Even if Guardians are, e.g., students or otherwise relatively transient, they are more likely than not to be considered to be occupying as an only or main residence.

The duty does not apply to an HMO licenced under the Housing Act 2004 (see below). This is because the mandatory conditions attached to such a licence require the licence-holder to ensure that smoke and carbon alarms are installed in licensed properties. The landlord/licensor must ensure that there is a smoke alarm on each storey of the property on which there is a room used wholly or partly as living accommodation. Living accommodation includes a bathroom or lavatory. The landlord must also ensure that there is a carbon monoxide alarm in any room used as living accommodation which contains a solid fuel burning combustion appliance. The Regulations are enforced by local authorities.

1.5.4 Fire Safety Order

The Regulatory Reform (Fire Safety) Order 2005 is primarily concerned with fire safety in the workplace but extends to a wide range of other premises. Although the Order does not apply to ‘domestic premises’, these are defined so as only to include premises occupied as a private dwelling, including any garden, yard, garage, outhouse, or other appurtenance of such premises which is not used in common by the occupants of more than one such dwelling. Accordingly, the Fire Safety Order applies to the common parts of a block of flats or the shared parts of any HMO which are so used. In some cases, therefore, the Fire Safety Order will apply.

In others cases, it may be less clear, e.g. where there is only one dwelling in the building, which is occupied by a number of Guardians, so that there is no apparent use by the occupiers of other dwellings, the Guardian Company (or its principal) will nonetheless be in possession of other dwellings (if any), and as such may be considered to be in occupation of them so that, in turn, they are using the common parts in common with the Guardians, e.g. when showing round potential new occupiers.

Caution therefore suggests compliance in all cases, not least because it is not impossible (bearing the nature of the relationship in mind) that a Guardian Company could be considered to owe a common law duty of care to very similar effect in all the circumstances.

The duties under the Order are imposed on the ‘responsible person’ defined in such a way that, where the Order applies, the duties are imposed on the Guardian Company.

Key issues are summarised below, but all Guardian Companies should have regard to the Home Office document: “Fire safety risk assessment: sleeping accommodation” which gives detailed guidance on the Fire Safety Order.

1.5.4.1 General duty

Under the Fire Safety Order, the responsible person owes a duty to any ‘relevant person’ to take such general fire precautions as may reasonably be required in the circumstances of the case to ensure that the premises are safe. Relevant person is defined as anyone who may be lawfully on the premises.

1.5.4.2 Risk assessment and other duties

The Fire Safety Order also requires the responsible person to undertake an assessment of the risks to which relevant persons are exposed in order to identify the general fire precautions he or she needs to take to comply with the requirements of the Order.

There is a duty on the responsible person to ensure that, where necessary, the property is, to the extent that is appropriate, equipped with fire-fighting equipment, fire detectors and alarms, and that any equipment provided is easily accessible, simple to use and indicated by signs. There must be a suitable system of maintenance for maintaining any fire-fighting equipment.

The responsible person must also ensure that routes to emergency exits from the property and the exits themselves are kept clear at all times.

The Order also imposes a duty on the responsible person to implement appropriate safety procedures to be followed in the event of imminent danger. While the Order does not specify the extent of suitable training for building types, buildings occupied by Guardians are often may be complex in layout. It is probably appropriate to ensure that every Guardian has a basic training course on what to do in the event of fire and how to use fire-fighting equipment to comply with the expectations of the Order. On their arrival at the property, Guardians should actually be shown the exit routes and be given a briefing on the fire plan and who is responsible in the event of fire.

1.5.3 Physical Protection

Physical protection from fire is largely achieved through proper building standards and the installation of effective fire doors. If any significant works are carried out, these works will need to comply with Part B of the Building Regulations 2010. Where a building is not at this standard, this is something which will affect the fire risk assessment and additional precautions may be needed.

1.5.4 Furniture

If any upholstered furniture is provided it must comply with the Furniture and Furnishings (Fire) (Safety) Regulations 1988. All furniture in the property must have a permanent label clearly stating that it passes the ignitability test (which means are resistant to ignitability if a lighted match or cigarette is placed on them). Beds and mattresses do not require these labels but are fire resistant if they comply with the Standard BS 7177 which will usually be shown on the mattress label.

Failing to comply with these Regulations is a criminal offence punishable by up to 6 months’ imprisonment and an unlimited fine. A Guardian may also be able to make a personal injury claim for damages if a fire is caused by a breach of these regulations.

1.6 Other Environmental Health considerations

1.6.1 Legionella

Legionella can develop in stagnant hot or cold water systems. If water droplets containing with legionella bacteria are inhaled, this can cause legionnaires’ disease.

Property Guardian Companies have duties in relation to managing the risks of legionella arise from the application of the Health and Safety at Work etc Act 1974 and the Control of Substances Hazardous to Health Regulations 2002. Landlords and licensors are required to assess the risk of exposure to legionella in their properties but that does not always mean that a detailed assessment is necessary.

The HSE have issued guidance – Legionella and landlords’ responsibilities – which states that ‘legionella test certificates’ are not mandatory and there is no specified frequency of risk assessments that is required. However, it would be good practice to record the findings of any risk assessment and to review the assessment periodically.

If a Guardian Company is confident that there are no risk factors present and there is no significant risk posed by legionella, no further risk assessment will be required. Some risk factors which would indicate that a more detailed assessment is needed to include the presence of stored water tanks and or ‘dead legs’ in the pipe system.

1.6.2 Asbestos

Asbestos might be present in properties occupied by Guardians. Removal of such asbestos is likely to result in an increase in airborne fibre levels, and so existing asbestos can be managed. Asbestos itself is not forbidden but it must be in a safe condition.

If asbestos is present but it is in good condition and not damaged and it is not likely to be worked on or disturbed, then there is probably not a significant risk to Guardians.

Effective management of asbestos materials involves identifying the location and condition of asbestos ensuring it is effectively sealed, made inaccessible, labelled, and its location recorded.

Asbestos can be a hazard under the HHSRS and if Guardians subsequently suffer any injuries they might have a civil claim under the Occupiers Liability Act 1957.

1.6.3 Physical safety

1.6.3.1 HHSRS

A local authority may take action in relation to a tripping or falling hazard under the HHSRS.

1.6.3.2 HMO Management Regulations

If the property is an HMO, the HMO Management Regulations impose a duty on the person managing the HMO to maintain all common parts of the HMO in safe and working condition and to keep then them reasonably clear from obstruction. Beyond this, the common parts of the HMO must be kept in good and clean decorative repair.

“Common parts” has an extensive definition and includes entrance doors, stairways corridors used by occupants to access their own personal units of living accommodation. A potential issue for Guardian Companies is that common parts includes “any other part of an HMO the use of which is shared by two or more households living in the HMO, with the knowledge of the landlord”. This could encompass parts of a building which the company did not intend the Guardians to make use of but which it knows they do. The regulations specify that handrails and bannisters should be provided where necessary, and all stair coverings, banisters and handrails, windows and other means of ventilation in the commons parts are kept in good repair.

Breach of the Management Regulations without reasonable excuse is a criminal offence. In order to avoid committing this offence, regular inspections of the common areas will be essential. Records must be kept to prove that this was done and that no problems were detected. If Guardians are causing obstructions (such as leaving bicycles in a hallway) action must be taken and records kept, or the Guardian Company will not have a ‘reasonable excuse defence’.