Coronavirus continues to spread throughout China and around the world, leaving many questions as to who is responsible for what and whether there are any obligations to address or limit exposure or infection. For landlords in England and Wales, much depends on how much control they have over their property.
Coronavirus and general health and safety
Health and safety duties are generally either based on actual control (and the ability to implement measures) or presumed control implied by law. In the case of legionella, for example, the law effectively imposes a default duty on landlords to address legionella risks. Legionella, however, is a disease that is fostered and grows in building-wide waterborne systems which a landlord (as opposed to a tenant) can often control.
The situation with coronavirus is arguably different. First, while outbreaks are a health and safety matter, they are potentially outside the scope of normal health and safety good practice. That is, the coronavirus is passed human to human, and is not linked to buildings or their infrastructure per se. As the Health and Safety Executive (the regulator for health and safety matters in England and Wales) notes on its website (in relation to the historic SARS outbreak), it lacks general competency in relation to potential outbreaks.
However, that is not to say that health and safety law does not have a role to play. The relevant law is the Control of Substances Hazardous to Health Regulations 2002 (COSHH). This is a set of regulations produced under the UK’s general health and safety law: the Health and Safety at Work etc Act 1974. COSHH can apply with respect to viruses (such as the coronavirus). However, a key element for COSHH to apply is whether “control” is exercised and, through it, there is an ability to effect change in the health and safety circumstances at a location. A landlord is unlikely to have sufficient “control” to be able to impose strict hygiene regulations.
Capacities in which a landlord is acting
The situation could be different where a landlord is providing services above and beyond the simple provision of a rental property. In such cases, the landlord would likely have obligations in respect of their own employees that attend the property to provide any of the services, and in respect of other persons likely to be present in parts of a property under their control (such as common or retained parts).
However, it is important to note that this is different from landlords having obligations solely in their capacity as landlord. It seems unlikely a landlord who has no active role in the management of their building, and who is solely providing rental units, would have any obligation purely in its capacity as landlord.
The applicable duties
If an entity is potentially subject to duties under COSHH (for example, as an employer), the question arises as to what duties could apply in respect of coronavirus. The answer will differ depending on whether there is simply a general risk or whether there is a specific infected person or a potentially infected person identified as having been present at a property. In the case of a specific infected person or potentially infected person, the COSHH framework (and other existing health and safety guidance) is arguably much less relevant than other sources of official guidance. The appropriate sources of guidance are the Department of Health and Social Care and Public Health England (PHE).
Appropriate action
In relation to a property where a specific case of coronavirus has been identified, entities involved (be they landlord, managing agent, or any other entity operating at the property) should make direct contact with PHE and follow the specific requirements promulgated by them.
This could include, for example, co-operating with the authorities to restrict public access to the building, providing details of individuals present at the property, permitting decontamination and clean-up activities, and ultimately suspending services (at least temporarily).
More generally, landlords could consider other steps connected with their perceived responsibilities to their tenants. This could include the provision of information in notices or hand-outs, although there is presently no obligation to do so. The content of such notices, to the extent that they contain substantive advice, should be considered carefully. It may, for example, be prudent to liaise with PHE or to provide that further information and guidance should be sought from PHE.
Landlords who are employers, as with any other employer, would also have duties to their staff in relation to risks posed from infectious diseases. As noted above, the guidance provided by PHE should be followed.
Finally, it would be prudent to appoint a responsible person to keep abreast of ongoing developments. Where any recommendations appear to be applicable, they should be implemented.
Carol Hopper is a shareholder and Aonghus Heatley is a senior associate at Greenberg Traurig LLP
