Duties Of Dealing With Asbestos
The duty to manage asbestos is directed at those who manage non-domestic premises: the people with responsibility for protecting others who work in such premises, or use them in other ways, from the risks to ill-health that exposure to asbestos causes.
What is duty?
The duty to manage asbestos is contained in regulation 4 of the Control of Asbestos Regulations 2012. It requires the person who has the duty (ie the ‘duty holder’) to:
- take reasonable steps to find out if there are materials containing asbestos in non-domestic premises, and if so, its amount, where it is and what condition it is in
• presume materials contain asbestos unless there is strong evidence that they do not
• make, and keep up-to-date, a record of the location and condition of the asbestos-containing materials - or materials which are presumed to contain asbestos
• assess the risk of anyone being exposed to fibres from the materials identified
• prepare a plan that sets out in detail how the risks from these materials will be managed
• take the necessary steps to put the plan into action
• periodically review and monitor the plan and the arrangements to act on it so that the plan remains relevant and up-to-date
• provide information on the location and condition of the materials to anyone who is liable to work on or disturb them
There is also a requirement on others to co-operate as far as is necessary to allow the duty holder to comply with the above requirements.
Who has the duty?
The duty holder is the owner of the non-domestic premises or the person or organisation that has clear responsibility for the maintenance or repair of non-domestic premises, for example through an explicit agreement such as a tenancy agreement or contract.
The extent of the duty will depend on the nature of that agreement. In a building occupied by one leaseholder, the agreement might be for either the owner or leaseholder to take on the full duty for the whole building; or it might be to share the duty. In a multi-occupied building, the agreement might be that the owner takes on the full duty for the whole building. Or it might be that the duty is shared - for example, the owner takes responsibility for the common parts while the leaseholders take responsibility for the parts they occupy. Sometimes, there might be an agreement to pass the responsibilities to a managing agent.
In some cases, there may be no tenancy agreement or contract. Or, if there is, it may not specify who has responsibility for the maintenance or repair of non-domestic premises. In these cases, or where the premises are unoccupied, the duty is placed on whoever has control of the premises, or part of the premises. Often this will be the owner.
In public buildings, such as hospitals, schools and similar premises, the identity of the duty holder will depend on how the responsibility for maintenance of the premises is allocated. For example, for most schools, the duty holder will be the employer. Who the employer is varied with the type of school. For local authority managed schools, eg community schools and voluntary-controlled schools, the employer is the local authority. For voluntary-aided and foundation schools, it will be the school governors, and for academy and Free Schools, the academy trust will be the employer. For independent and fee-paying schools, it may be the proprietor, governors or trustees. Budgets for repair and maintenance of school buildings are sometimes delegated to schools by a local authority. In such cases, the duty to manage asbestos is shared between schools and the local authority.
What premises are affected?
The duty to manage covers all non-domestic premises. Such premises include all industrial, commercial or public buildings such as factories, warehouses, offices, shops, hospitals and schools.
Non-domestic premises also include those 'common' areas of certain domestic premises, such as purpose-built flats or houses converted into flats. The common areas of these premises include foyers, corridors, lifts and lift shafts, staircases, roof spaces, gardens, yards, outhouses and garages - but would not include the individual flats themselves.
How do duty holders comply?
There are four essential steps:
- find out whether the premises contains asbestos, and, if so, where it is and what condition it is in. If in doubt, materials must be presumed to contain asbestos
- assess the risk from asbestos present in the premises
- make a plan to manage that risk and act on it
- provide this information to other employers (eg building contractors) who are likely to disturb any asbestos present, so that they can put in place appropriate control while the work is being done.
Here are some basic principles to consider when managing asbestos:
- asbestos is only dangerous when disturbed. If it is safely managed and contained, it doesn't present a health hazard
- don't remove asbestos unnecessarily - removing it can be more dangerous than leaving it in place and managing it
- not all asbestos materials present the same risk. The measures that need to be taken for controlling the risks from materials such as pipe insulation are different from those needed in relation to asbestos cement
- if you are unsure about whether certain materials contain asbestos, you should presume they do and treat them as such
- remember that the duty to manage is all about putting in place the practical steps necessary to protect maintenance workers and others from the risk of exposure to asbestos fibres - it is not about removing all asbestos
Do I need a licensed contractor?
If ACMs need to be sealed, encapsulated or removed, remember you will need to employ a licensed contractor (like us) if the materials are high risk (eg pipe insulation and asbestos insulating panels). If the materials are lower risk (eg asbestos cement sheets and roofing) then an unlicensed but competent contractor may carry out this work.