Asbestos is a toxic material that was used in building and construction up until the 1990s – before it was banned.
If disturbed, asbestos can cause fatal lung diseases, such as asbestosis, mesothelioma and pulmonary fibrosis. These diseases can be impossible to treat, and often do not present symptoms until decades after the exposure. According to the HSE, asbestos exposure is the greatest cause of work-related deaths in Great Britain, and around 5,000 people die every year from asbestos-related diseases.
The HSE launched a new campaign in January of this year to highlight the risk of asbestos in buildings and raise awareness of the legal duty to manage those risks. View here.
It is abundantly clear from a brief visit some 11 months later to the home page of the HSE website (HSE: Information about health and safety at work), that asbestos safety remains a key focus for the regulator and it will no doubt be keen to demonstrate over the coming months that such dedication to the issue has yielded results both in enforcement action and prosecutions of dutyholders found in breach of their obligations.
Indeed, from my own experience of advising clients under investigation for a variety of non-asbestos related workplace offences over the past 12 months, many have faced requests by the investigating HSE inspector for a copy of their asbestos survey with the threat of enforcement action if no such survey is produced or commissioned promptly.
It is, therefore, important that dutyholders – building owners, landlords or persons and organisations responsible for a building’s maintenance and repair – are aware of their obligations regarding the management of asbestos safety, most notably under the Control of Asbestos Regulations 2012, the Health and Safety at Work etc. Act 1974, and the Management of Health and Safety at Work Regulations 1999.
The HSE guidance on managing asbestos in buildings can be found at The duty to manage asbestos in buildings: Overview - HSE
Principally, a dutyholder must protect people from the risks of exposure to asbestos. This includes people who:
The duty to manage asbestos in buildings covers all non-domestic premises (such as factories, shops, schools) and ‘common parts’ of multi-occupancy domestic premises (for example, purpose-built flats).
Public buildings – In public buildings, who the dutyholder is depends on who is responsible for maintenance. For example, for most hospitals, the dutyholder will be the employer.
Schools – In schools, who the dutyholder is varies with the type of school. For local authority managed schools, for example community schools, the local authority is the employer. For voluntary-aided and foundation schools, it will be the school governors. For academy and free schools, the academy trust will be the dutyholder. The local authority sometimes delegates budgets for maintenance to the school. In such cases, the duty to manage asbestos is shared between schools and the local authority. For independent and fee-paying schools, it may be the proprietor, governors or trustees. The HSE has a page about asbestos in schools. It covers what schools should do and has links to other government guidance. The asbestos checklist for schools will help schools review their asbestos management arrangements.
Common parts of domestic premises – In common parts of domestic premises, the person responsible for those areas, such as the landlord of rented accommodation, is responsible for managing asbestos. The common parts of these premises do not cover individual flats, but do include communal areas such as foyers and corridors, lifts and lift-shafts, staircases, roof spaces, outhouses and garages. The Approved Code of Practice: Managing and working with asbestos has more information about the duty to manage in common parts of domestic premises. If you are a landlord providing social or private housing, the general duties in section 3(1) of the Health and Safety at Work Act apply to protect tenants and householders from any risks from work activities being carried out in their homes.
Non-domestic multi-occupied building – A person or organisation could have responsibility for the maintenance or repair of the premises through a tenancy agreement or contract.
The extent of the duty will depend on the agreement. The tenancy agreement might be that the owner takes on the duty for the whole building, or the duty might be 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 all or some of the responsibilities to a managing agent. However, the legal obligation to comply with duty to manage regulation cannot be passed to a managing agent. There may be no tenancy agreement or contract. Even if there is one, it may not say who is responsible for the maintenance or repair of non-domestic premises. In this case, or where the premises are not occupied, whoever has control of the premises, or part of the premises, is responsible. Often this will be the owner.
As a dutyholder you must:
To make sure that ACMs within your premises are properly managed, you must identify the person within your organisation who will be responsible for that management. The responsible or appointed person should be competent to do this work. This means they should have the resources, skills, training and authority to ensure the ACMs are managed effectively.
The right person for this role will vary:
As a dutyholder, you must provide additional training for those in control of parts of the asbestos management plan.
The Approved Code of Practice: Managing and working with asbestos has more information to help you comply with the duty to manage asbestos. The HSE website provides examples of how asbestos risks can be managed.
Keoghs has a national team of specialised crime and regulatory lawyers who can support your business in the event of an investigation by the police, HSE, local authority, CQC or coroner. Please do get in touch should you need to discuss.
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