The smoke free legislation only applies to the common parts of the HMO building if the common parts are:
Common parts include entrance lobbies, stairwells, lifts, corridors plus any facilities/areas shared by the occupants of more than one household. For example, if the property is split into bedsits, the common parts would include any kitchens, bathrooms or living/dining areas that are shared by more than one household.
The wording 'open to the public' implies that there is open access to the public through an unlocked door. Therefore a block of flats with an open entrance or unlocked communal entrance door would be considered 'open to the public' and the smoke free legislation would apply. However, any residential property with a locked front door either controlled manually or via a door entry system would be considered private.
If the common parts of the building are not open to the public, the smoke free legislation will only apply if the common parts are used as a place of work by more than one person (including voluntary work). This could apply to workers including: cleaners, porters, security guards, who are specifically employed to work in the common parts of the residential property. Where there is only one such person employed then the provision of a second person on a temporary basis to cover a period of sickness absence or holiday might be discounted.
The question of whether the common parts are used as a place of work by more than one person will be a question of fact and degree. If entry to the common parts is irregular or ad-hoc (such as parcel deliveries, fast food deliveries, supermarket shopping deliveries, house removal firms and estate agents) it will be discounted as work.
The regulations also specifically exclude work that is carried out to maintain the structure or fabric of the dwelling and/or to install, maintain or remove any service provided to the dwelling for the benefit of persons living in it.
If the common parts are used as a place of work by more than one person, section 2(3) of the Health Act 2006 states that the smoke free legislation will apply to the parts of the property that are open to the public and/or used as a place of work by more than one person.
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