Control of Asbestos Regulations 2006 - Duty to manage asbestos in non-domestic premises

The Control of Asbestos Regulations 2006 place obligations on the part of employers, landlords and other types of "dutyholder" to identify and manage asbestos and to notify the Health and Safety Executive ("HSE") when carrying out particular types of work. Earlier this year, the European Commission issued a reasoned opinion that the UK had failed to fully implement European standards through these Regulations and the UK government is currently carrying out a consultation on this issue. The proposals made by the Health and Safety Executive (which are expected to become law in April 2012) anticipate changes to the rules relating to the notification of work, medical examinations and record-keeping, with the  effect that a broader range of previously "non-licensable" work will need to be notified to the HSE.

The Consultation provides a timely opportunity to recap on key duties that apply within the industry, as failure to comply can result in criminal penalties and significant risks to health and safety.

Firstly, there is a ban on the use of new asbestos. However, if existing asbestos containing materials within premises are in good condition they may be left in place provided that their condition is monitored and managed to ensure they are not disturbed.

Duty to manage asbestos in non-domestic premises

Regulation 4 applies to those with an obligation to maintain and/or repair a non-domestic premises or any means of access to it (referred to as "dutyholders"). "Non-domestic" premises includes any premises that are not occupied as a private dwelling. However, the common areas of certain domestic premises such as blocks of flats will constitute non-domestic premises for the purposes of the regulations. Those areas might include foyers, corridors, lifts and lift shafts, staircases, roof spaces and so on but would not include the flats themselves.

Dutyholders must manage asbestos-related risks by carrying out risk-assessments and, if necessary, ensuring that a written plan is prepared and implemented to address the actual or potential presence of asbestos at the relevant premises.

Assessment

Dutyholders must carry out an assessment to establish whether asbestos is present or liable to be present in the premises.

A "suitable and sufficient assessment", as required by the legislation, involves:

• Taking into account building plans;
• Inspecting reasonably accessible areas; and
• Reviewing the assessment as appropriate if there is reason to suspect that the most recent assessment is invalid or in light of any significant changes in the premises.

The results of the assessment and any review must be recorded.

Management of the Risk

If assessment results suggest that asbestos is present or is likely to be present at the premises, the dutyholder must ensure that the following steps are taken:

• Determine the risk from that asbestos;
• Prepare a written plan identifying those parts of the premises concerned and specifying the measures to be taken for managing the risks;
• Include in the measures for managing the risk adequate measures for:
• Monitoring the condition of the asbestos
• Proper maintenance or removal of the asbestos
• Providing information about the location and condition of the asbestos to every person liable to disturb it and make such information available to the emergency services;
• Review and revise the plan at regular intervals (and immediately if there is reason to suspect that the plan is no longer valid or if there is a significant change to the relevant premises);
• Implement the measures in the written plan; and
• Record measures taken to implement the written plan.

Landlords must ensure that they have procedures in place to comply with the above. The HSE advises that:

• Asbestos does not present a danger unless it is disturbed. Removing asbestos unnecessarily can be more dangerous than leaving and safely containing and managing it;
• Different asbestos materials present different risks. Obtain professional advice if you are unsure as to the type of asbestos that is involved or how a particular type of asbestos should be managed;
• If you are unsure as to whether materials contain asbestos, it is advisable to treat them as if they do; and
• Bear in mind the HSE's licensing and notification requirements when dealing with materials containing asbestos.

If you require further information please contact Sian Gibbon on +44 (0)1392 334101 or s.gibbon@ashfords.co.uk

Ashfords LLP is Authorised and Regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.