What are my legal obligations regarding asbestos?
There is a legal requirement under The Control of Asbestos Regulations 2012(CAR 2012), Regulation 4, to manage the risk from asbestos in non-domestic
premises. These regulations are promulgated under The Health and Safety at Work etc. Act 1974, which requires employers to provide a safe place of work.
Together these comprise the main legal statutes for asbestos, but there are also other regulations that can apply:-
- The Management of Health and Safety at Work Regulations 1999 – these detail the duty to prepare a risk assessment and make written
arrangements to protect those at risk.
- The Workplace (Health, Safety & Welfare) Regulations 1992 – detail the duties to maintain workplace buildings/premises in a condition to
protect occupants and workers.
- The Construction (Design & Management) Regulation 2007 – require asbestos to be considered during some refurbishment/ construction
- The Defective Premises Act 1972 – places duties on landlords to take reasonable care to ensure tenants and other people are safe from
personal injury or disease caused by a defect in the state of the premises.
Who polices legal compliance?
The Health and Safety Executive (HSE) is responsible for enforcing health and safety at workplaces including factories, farms, building sites, nuclear installations, mines, schools and colleges, fairgrounds, gas, electricity and water systems, hospitals and nursing homes, central and local government premises and offshore installations.
Environmental Health Officers (EHOs) employed by Local Authorities are responsible for offices (except government offices), shops, hotels, restaurants, leisure premises, nurseries and playgroups, pubs and clubs, museums (privately owned), places of worship, sheltered accommodation and care homes.
Why do I need an asbestos survey of my building if I don’t intend to do anything?
In order to discharge the legal duty to manage asbestos in a building, i.e. imposed by Regulation 4 of CAR 2012, you first need to know where it is located. This can only be achieved by undertaking a survey or presuming that it is present in all but the most obvious non-asbestos products, e.g. metal or wood cladding.
This duty to manage is a legal obligation for buildings built before 2000, because asbestos containing materials (ACMs) can pose a health risk irrespective of what works may or may not be planned.
There is also a legal obligation under the Health and Safety at Work etc. Act 1974 to provide a safe place of work and in order to discharge this obligation, knowledge of the presence of asbestos and the health risk it may pose is necessary.
Once surveyed, does that discharge my obligations?
No – this is only the first step of the process of managing ACMs, i.e. gathering data on the extent, type and condition of ACMs in the building. Once identified, the health risk posed by the ACMs needs to be assessed and proactively managed to prevent harm, ie exposure to asbestos occurring.
What is an Asbestos Risk Assessment?
This is a process of assessing the potential for asbestos exposure under prevailing site circumstances. The basis for an assessment is the potential for
the ACM to release its asbestos fibres into the air as a result of wear and tear, friability or being disturbed.
CAR 2012 and associated Approved Code of Practice (ACOP) and HSE Guidance stipulate that ACMs, should be checked (ie re-assessed) at least every 6 to 12 months, even if they are in good condition and not likely to be disturbed.
What is an Asbestos Management Plan and do I need one?
An Asbestos Management Plan is a working document used to manage the asbestos risk by ensuring that if followed, as far as reasonably practicable, no one can come to any harm from asbestos on the premises. An Asbestos Management Plan is a legal requirement of Regulation 4 of CAR 2012. It details the measures and procedures which are to be taken for managing the risk, namely:
- to monitor the condition of ACMs,
- to ensure ACMs are properly maintained and where necessary safely removed,
- to ensure that information about the location and condition of any ACM is made available to any person liable to disturb it, including the emergency services,
- to ensure the control measures specified are implemented and recorded,
The Asbestos Management Plan will require reviewing and revising at regular intervals and forthwith if there is any reason to suspect that the plan is no longer valid or there has been significant change in the premises to which the plan relates.
Who is a Duty Holder and what is their role?
The Duty Holder is defined as every person who has, by virtue of a contract or tenancy, an obligation of any extent in relation to the maintenance or repair of non-domestic premises or any means of access thereto or egress therefrom. The Duty Holder’s responsibility is to manage the asbestos risk by making sure that as far as reasonably practicable no one can come to any harm from asbestos.
My building is new – do I still need an asbestos survey?
No – if the building was constructed in 2000 or later, then the Health and Safety Executive’s view is that it will not contain ACMs, since there was a total prohibition of using asbestos in construction materials in 1999.
Who is responsible to remove asbestos if found?
The Duty Holder is ultimately responsible for the safe removal or repair of the asbestos, if in poor condition. Asbestos can only be removed or repaired by a competent contractor, appropriately trained to work with asbestos. Generally the contractor is bound to hold an asbestos licence for working with asbestos (issued by HSE) and notify the HSE or EHO when intending to work on asbestos, although there are 3 risk categories of asbestos work subject to the nature of the asbestos:-
- Notifiable Licensable Work (the majority) – where only a licensed contractor must notify HSE/EHO of intended asbestos work 14 days in advance
- Notifiable Non-Licensable Work – where no asbestos license is required to be held by the contractor, but the HSE/EHO must be notified that it is planned which can be done on-line (immediately).
- Non-Licensable work – where no asbestos license is required to be held by the contractor (low risk)
Once asbestos is found, is it obligatory to remove it?
No – if the Asbestos Risk Assessment determines that the ACM does not pose a health risk in situ, given the usage or planned usage of the building, then the asbestos can remain in situ and be managed and inspected regularly to confirm its safe condition.
We are planning to refurbish or demolish some buildings do I need to upgrade my management survey?
Yes – a Refurbishment or Demolition Survey will be required for all work which disturbs the fabric of the building in areas where a Management Survey has not been sufficiently intrusive. The Duty Holder will need to make the decision, probably with help from others, on the necessity for upgrading the asbestos survey based on the nature of the work to be undertaken.
What are my responsibilities in relation to asbestos training?
It is a legal requirement under Regulation 10 of CAR 2012 that every employer shall ensure that adequate information, instruction and training is given to those of his employees who are or who are liable to be exposed to asbestos, or who supervise such persons. Training needs to cover aspects such as:
- The properties of asbestos and its effects on health
- The types of products likely to contain asbestos and where they are to be found in premises
- The operations which could result in asbestos exposure and
- Safe work practices, control measures, and protective equipment
Do I need to undertake a survey of a residential block that I manage?
Yes – the common parts of a residential block are covered by CAR 2012.
The flats themselves however are excluded, unless the Duty Holder has responsibilities relating to repair and maintenance work within the flats and has maintenance staff entering the flats. In this situation the Duty Holder would be required to identify the asbestos in the flats as it becomes a workplace and is therefore covered by the Health and Safety at Work etc. Act 1974 and CAR 2012.