Compliance and responsibility

Can the Legionella responsible person be an external contractor?

• Duty holder and responsible person are different roles. Only one of them can be appointed out.
• Competence, authority and knowledge are the test for the appointment.
• The legal duty stays put. Outsourcing the role does not outsource accountability.
• Evidence is the practical test. A duty holder has to be able to show the regime is being followed.

The two roles, and which one can be appointed out

A great deal of confusion here comes from treating duty holder and responsible person as interchangeable. They are not, and the difference determines what can be delegated.

The duty holder is the employer, or the person in control of the premises, who carries the legal obligation to manage the risk from legionella. That position arises from the legislation and from occupation or control of the premises. It is not an appointment and it cannot be assigned to a supplier.

The responsible person is the appointed competent person who takes day to day managerial responsibility for implementing the control scheme. This role is explicitly recognised in HSE guidance, and the specific role of an appointed competent person, known as the responsible person, was given approved code of practice status in the fourth edition of L8 published in 2013.

It is this second role that may sit with a third party. The requirement is competence, sufficient authority to make the scheme work, and the knowledge to do it properly. A contractor or consultant who genuinely meets that test can hold it.

What does not change when you appoint externally

This is the part that is regularly misunderstood, sometimes expensively.

The duty holder remains legally accountable for the control of legionella risk on the premises. Engaging a specialist does not transfer that accountability, it discharges part of the duty by obtaining competent assistance. If the scheme is not being implemented, the duty holder is the one answerable for it.

That has a direct practical implication. The duty holder needs to be able to demonstrate that the appointed person is competent, that the appointment is clear, that the person has sufficient authority to actually get things done, and that the control scheme is genuinely being carried out. A contract on file is not, by itself, evidence of any of those things.

Where the appointment covers multiple sites or a large estate, there is a further question of capacity. Authority and competence are necessary but not sufficient if the appointed person cannot realistically maintain oversight of everything nominally covered.

What the duty holder has to be able to show

Assurance is where outsourced arrangements most often fall down, because the duty holder loses visibility of the very records they remain accountable for.

The core evidence is that control measures are being carried out at the required frequency and that results fall within the expected limits, with any excursion investigated and acted on. Temperature at sentinel outlets, calorifier and cold water storage temperatures, and flushing of infrequently used outlets are the routine items that generate that record.

Where those checks are manual, the record is a set of readings taken at points in time by whoever attended, and the gaps between visits are unobserved by definition. Continuous temperature monitoring changes the nature of the evidence, because it records the full profile rather than a sample, timestamps every reading independently, and flags excursions when they happen rather than at the next visit.

For a duty holder relying on an external responsible person, that independence is the useful part. It provides assurance that does not depend solely on the appointed party reporting on their own performance.