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Asbestos Legislation Information

The duty to manage asbestos is directed at those who manage non-domestic premises.

The duty holder is responsible for protecting those who work in or use non-domestic premises from the risks to ill health that exposure to asbestos can cause. The consequences in not doing so can be quite severe.

The following extract from guidance publications provides a degree of assistance and answers to some of the principal questions about the duty.

It covers areas such as:

Who is the duty holder?

The duty holder is the person responsible for the fabric of the building. This might be the building owner or the occupier. In tenanted properties, it might be the tenant, subject to the actual terms of the lease. It might also be any other legally responsible person or entity.

What is the duty?

The duty to manage asbestos is contained in Regulation 4 of the Control of Asbestos Regulations 2006. The regulations require, among other things, the person who has the duty (i.e. 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 its condition
  • presume that 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 anyone to co-operate as far as is necessary to allow the duty holder to comply with the above requirements.

Who has the duty?

In many cases, the duty holder is the person or organisation that has clear responsibility for the maintenance or repair of non-domestic premises 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.

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 communal areas of certain domestic premises: purpose-built flats or houses converted into flats, for example. The communal areas of such domestic premises might include foyers, corridors, lifts and lift-shafts, staircases, roof spaces, gardens, yards, outhouses and garages – but would not include the flats themselves. Such communal areas would not include rooms within a private residence that are shared by more than one household such as bathrooms, kitchens etc in shared houses or communal dining rooms and lounges in sheltered accommodation.

How do duty holders comply?

To comply with legislation, duty holders must demonstrate to the HSE or EHO when questioned what steps have been taken to manage the potential for Asbestos Containing Materials (ACMs) within the fabric of a building's structure.

This can be achieved by commissioning an asbestos survey and report and the formulation of a management plan which considers removal or management of ACMs.

There are three essential steps:

  • find out whether the premises contain 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; and
  • make a plan to manage that risk and act on it

Here are some basic principles to remember:

  • 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 can 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

If any ACMs need to be sealed, encapsulated or removed, remember you will need to employ a licensed contractor if the materials are high risk (e.g. pipe insulation and asbestos insulating panels). If the materials are lower risk (e.g. asbestos cement) then an unlicensed but competent contractor may carry out this work (providing the contractor is a licensed waste carrier and is insured to manage asbestos materials).

What is the HSE doing to encourage compliance with the duty to manage asbestos?

The HSE is running a campaign to reduce the risks to ill health for people who use buildings which contain asbestos by:

  • raising awareness of this duty among those that have the duty to manage asbestos - the people or organisations that have responsibility for the repair and maintenance of non-domestic premises and/or control of those premises; and
  • by promoting practical advice and guidance on how they might comply with the 'duty to manage' asbestos