KNOW YOUR RISKS
Avoid the pitfalls of commercial property ownership with this easy guide
With the economy showing signs of recovery, owners of commercial, industrial or residential property should find it easier to attract tenants. To maximise profit, it’s essential to take a proactive approach to risk management, including ensuring the right insurance is in place.
THINGS TO CONSIDER
Taking out the correct level of buildings cover is key. But, according to Martyn Barrett, Director at valuation specialists Barrett Corp & Harrington, underinsurance is endemic in the sector. “More than 80% of commercial properties are underinsured, with an average increase of 60% required,” he says. “The worst case I’ve seen involved an increase in the property’s cover by tenfold.” Underinsuring can have serious ramifications, potentially leaving property owners with a large bill should the building need reinstating. Chris Norman, Portfolio Manager for Travelers, says that confusion can arise around how much cover is required. “Property owners need to insure the cost of reinstating the building, including expenses such as clearing the site and removing debris, rather than the market value of the property,” he says. “A specialist valuation is needed to ensure the right level of cover.”
LOSS OF RENT
It is also important to consider how much cover might be needed for loss of rental income when a property cannot be occupied, perhaps due to a loss such as fire or flood. Although it’s a standard addition to a policy, cover limits are flexible and property owners need to think about how long it might take to reinstate the building and find new tenants. In the event of a fire, for example, this process could include clearing the site, gaining planning permission, rebuilding and then finding new tenants.
KNOW YOUR TENANTS
Filling empty property is a key goal for many commercial property owners, but failing to adequately check out a prospective tenant can leave owners seriously out of pocket. Risks can go far beyond a little tardiness with the rent. With money to be made from illegal drink and drugs, there’s a growing number of cases of tenants using properties for these purposes. Examples include a £14m operation in North Wales, where criminals were growing some 18,000 cannabis plants, and in Lincolnshire, where the explosion of an illegal vodka distillery left five dead. A sensible way to reduce this risk is to make sure you know who is renting the property before handing over the keys. “Have a thorough selection process in place and make enquiries about what they intend to do in the property,” says Norman. “It’s also prudent to undertake financial referencing and look at their trading history.” Another safety measure is to have rent paid through a bank account rather than in cash.
As well as reassurance about the tenants, commercial property owners must be clear about their responsibilities associated with the property. It’s prudent to ensure the lease reflects any policy conditions. For example, the insurance may specify that the alarm be switched on when the property is empty. You need to state clearly in the lease whether public areas are the responsibilities of the tenant or the property owner. This is particularly important in extreme weather, when failing to clear the snow from a customer car park or not salting a path could easily result in a public liability claim if someone slips. Protecting the property from the elements is essential, as the wreckage caused by the storms that battered the UK and Ireland in the first few months of 2014 demonstrates. A badly maintained property is not only difficult to let, but can also prove expensive from a liability perspective. Having a regular maintenance programme catches any problems early and helps to reduce the risk of possible third-party injury or damage if, for example, tiles have come loose on a roof.
INSURANCE CLAIMS UPDATE – MARCH 2014
A levy of 2.74% will be applied to all Employers Liability premiums from 28th July 2014.
A statutory action by the government to fund sufferers of the fatal asbestos related condition, where neither the Employer nor Insurer can be traced.
Scheme will pay 75% of the average court award made for those diagnosed from 25th July 2012 circa £115,000.
Note that those able to trace an employer or Insurer have redress through the courts for 100% of their claim, which varies between £100,000 to £200,000.
Unfortunately no cover or indemnity is provided under the scheme for any identified Employer who can't identify the Insurer for the period.
Noise Induced Hearing Loss
Currently there are 30,000 to 35,000 annually reported claims of which 70% are repudiated.
Legal costs associated with these types of claim are usually 75% of the overall cost which drives the number of claims received.
In order to succeed any claimant must clearly establish the cause of the deafness and assert a link with their previous employment
RIDDOR CHANGES COME INTO EFFECT
The following changes to the Reporting of Injuries, Diseases and Dangerous Ocurrences Regulations (RIDDOR) 1995 came into effect on 1st October this year.
According to the HSE, they are intended to simplify the mandatory reporting of workplace injuries for businesses. The changes affect all employers - including the self employed.
The main changes are in the following areas:
- the classification of "major injuries" to workers replaced with a shorter list of "specified injuries"
- the existing schedule detailing 47 types of industrial disease replaced with eight categories of reportable work-related illness
- fewer types of "dangerous occurrence" require reporting
There are no significant changes to the reporting requirements for:
- fatal accidents
- accidents to non-workers (members of the public)
- accidents resulting in a worker being unable to perform their normal range of duties for more than seven days
How an incident at work is reported and the criteria that determine whether an incident should be investigated remain the same.
To read more about the changes visit:
Personal Injury Claim Incident and Cost Reductions?
Effective from 1st April 2013 and 31st July 2013, two important changes have been put in place which is an effort by the Ministry of Justice to reduce the frequency and cost of liability claims:
1st April 2013 – Legal Aid Sentencing & Punishment of Offenders Act (LASPO) Introduced
Implemented following a review undertaken by Lord Justice Jackson:
- Referral fees ban
- Plaintiff lawyer success fees and recovery of legal costs via insurance no longer recoverable
- Early settlement penalty upon the plaintiff where admission of fault and negotiated offer rejected, subsequent increased legal costs of the defendant at the plaintiffs expense.
Whilst the above are positive actions, the following should also be noted as being acted upon, on the same date:
- Increase of 10% in general damage awards
- Costs will not be payable by the unsuccessful claimant to the defendant where claim genuine.
31st July 2013 – Fast Track Electronic Portal
Where it is identified and agreed there is fault, the solicitors fees are capped, but there is a strict timescale for process and cost.
Note that formal claims must be acknowledged by the next working day on receipt of the solicitors letter.
We would seek your help in this regard:
Report any incidents as they occur and advise your thoughts on responsibility with the following information:
- Accident book entry
- Post-accident investigation report
- Photographs of the accident location
- RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995)
- Risk Assessments
- Training Records
- Witness’ Statements
- CCTV footage (or ensure that it is retained)
- Pre and post-accident earning details
On receipt of a solicitors letter forward immediately with comments on fault if incident hasn’t been previously reported. Note where the incident is to be defended it will fall outside this process and follow standard procedure.
- Acknowledgement within next working day
- Decision is made within 15 days on Motor, 30 days on Employers Liability and 40 days Public and Products
- Employers Liability on admission 20 days to confirm any loss of earnings
- On admission 35 days to negotiate and agree a payment
Overall our sincere hope is that this will reduce occurring claims and mitigate cost where fault is acknowledged.
ELECTRICAL INSPECTION AND TESTING
Over one thousand accidents at work involving electric shock are reported to the Health & Safety Executive (HSE) each year.Faulty electrical installations and equipment are also a common cause of fires in commercial and industrial buildings, second only to arson.
It is essential that risks associated with electrical installations (often referred to as ‘fixed wiring’) and equipment are correctly assessed and controlled.
Electrical safety in the workplace is governed by the Electricity at Work (EAW) Regulations 1989. They require that the electrical system shall at all times be constructed and maintained "so far as reasonably practical, to prevent danger."
The word "system" includes fixed electrical installations, i.e. the wiring and switchgear installed in the building and permanently fixed equipment, such as; motors, compressors, heaters, lighting, etc.
IET Wiring Regulations BS 7671:2008
The EAW Regulations do not specify how frequently electrical equipment should be maintained or what records should be kept. These are covered in the Institution of Engineering and Technology (IET) Wiring Regulations BS7671 and the supporting IET publication Guidance Note 3: Inspection and Testing.
BS 7671 is a code of practice which is widely recognised and accepted in the UK. Installations that comply with BS 7671 are likely to satisfy the relevant parts of statutory regulations such as the EAW Regulations. However, in circumstances such as in licensed premises where specific requirements may differ from those of BS 7671, these will take precedence
Periodic inspection and testing
The purpose of periodic inspection and testing is to provide an "engineering view" on whether the installation is in a satisfactory condition and can be used safely. This involves a detailed visual examination together with appropriate testing.
Based on IET recommendations, inspection intervals will normally range between 1 & 5 years, depending on the type of installation and occupancy. Typically:
Industrial – 3 years
Offices – 5 years
Retail – 5 years
Educational establishments – 5 years
Restaurants and hotels – 5 years
Petrol filling stations - 1 year
Intervals less than those outlined may be recommended when the installation has suffered from neglect, or where it has been adversely affected by usage or environmental conditions.
A full list of all occupancies and the corresponding recommended inspection frequencies is published by the IET in Guidance Note 3.
Following the periodic inspection and test, an Electrical Installation Condition Report (formerly known as a periodical inspection report) is required, in which the installation is assessed in terms of its suitability for continued use as either "satisfactory" or "unsatisfactory".
In the case of an "unsatisfactory" installation, the report will incorporate remedial measures categorised as:
C1 – Danger present. Risk of injury.
Immediate remedial action required. The IET recommends that such items should be made safe on discovery, either by effecting immediate repairs or by taking the offending item or circuit out of service.
C2 – Potentially dangerous. Urgent remedial attention required.
C3 – Improvement recommended
Other electrical and testing protocols
Inspection and testing is also recommended by the IET:
• To assess compliance with BS 7671
• On a change of occupancy or use of the premises
• After alterations or additions to the original installation
• Any significant change in the electrical loading of the installation
• Where there is reason to believe that damage has been caused to the installation.
As well as formal periodic inspection and testing, the IET advocates that documented routine checks of the installation are carried out between inspections (in the majority of cases at annual intervals). The IET advises that these routine checks need not be carried out by an electrically skilled person, but should be done by someone who is able to safely use the installation and recognise defects.
Thermographic testing (also referred to as thermal imaging) is widely used in commercial and industrial premises as part of preventative electrical maintenance. It is not intended to replace conventional periodic inspection and testing, but is promoted as an additional activity with the objective of identifying electrical faults at an early stage.
Choosing electrical contractors
Select from contractors that are members of the National Inspection Council for Electrical Installation Contracting (NICEIC), the Electrical Contractors Association (ECA), the ECA of Scotland (SELECT) or other appropriate UKAS accredited organisations. Electrical inspection and testing is also available from some leading insurers as part of their engineering inspection services.
Requirements of insurers
Some Insurers apply electrical inspection conditions within their commercial property and business interruption covers and therefore it is important that these are checked and complied with in full.
The HSE has a specific webpage dedicated to electrical safety which can be found at
Information on electrical inspection and testing is also available from the IET at www.theiet.org
RISE IN CORPORATE MANSLAUGHTER PROSECUTIONS
Following three successful corporate manslaughter convictions, the Crown Prosecution Service (CPS) has announced that it is charging four further companies under the Corporate Manslaughter and Corporate Homicide Act 2007.
Mobile Sweepers (Reading) Ltd is being charged with the offence after an employee died of crush injuries at its premises near Basingstoke. The worker was carrying out repairs underneath a road-sweeping truck when he inadvertently removed a hydraulic hose causing the back of the truck to fall on him. The company’s sole director also faces a charge of gross negligence manslaughter. Additional charges of breaching the Health and Safety at Work, etc. Act 1974 and the Provision and Use of Work Equipment Regulations 1998 have been brought against both the director and the company.
Belmont Nursery, a garden centre in Kings Lynn run by PS and JE Ward Ltd, is being charged with corporate manslaughter after the death of an employee in July 2010. He died from an electric shock when the metal hydraulic-lift trailer that he was towing hit an overhead powerline. The company has also been charged with an offence under the Health and Safety at Work, etc. Act 1974.
MNS Mining Limited, which owns the Gleision Colliery in Wales, was summonsed for four counts of corporate manslaughter following the deaths of four miners in a flooding incident in September 2011. The manager of the mine is also being prosecuted for gross negligence manslaughter.
Prince’s Sporting Club of Middlesex has been ordered to stand trial for corporate manslaughter following the death of an 11-year old girl who fell from a banana-boat ride and was hit by the speedboat that was towing it. The club’s director is facing charges under the Health and Safety at Work, etc. Act 1974.
A Freedom of Information request has shown that the number of corporate manslaughter cases opened by the CPS increased to 63 in 2012, from 45 in 2011, 26 in 2010 and 7 in 2009. More than 50 of the opened cases are being investigated for prosecution. The majority of these appear to relate to small businesses.
From 1st September squatting in residential buildings in England and Wales became a criminal offence, with perpetrators facing up to six months in jail and a maximum £5,000 fine. However this legislation does not apply to commercial properties, which may now become more vulnerable as squatters seek alternatives.
The Employers Reference Number (ERN) and commonly referred to as the employers PAYE reference, for the policy holder and any subsidiary requirements.
The full name of each subsidiary company insured under the Employers Liability Policy.