What law applies?

• HSG264 – 2nd Edition
• CAR 2012 – Revision
• The Health & Safety at Work Act 1974

The Control of Asbestos Regulations 2012
Regulation 4 – Duty to Manage Asbestos in Non-Domestic Premises.

The Control of Asbestos Regulations 2012 supercedes the previous 2006 regulations which introduced an explicit duty to manage asbestos in non-domestic premises.

This important legislation tackles the biggest occupational health killer in the UK – Asbestos-related diseases. Over 5,000 people currently die each year from such diseases. 25% have once worked in the building and maintenance trades and often would have worked unknowingly on or near to Asbestos Containing Materials (ACMs).

Whilst virtually all other activities involving potential exposed to Asbestos have now ceased, evidence suggests that this vulnerable group is still at considerable risk from unknowingly being exposure to Asbestos.

The requirements of the new duty seek to prevent further unknown exposure to Asbestos by building and maintenance workers with the aim of saving 5,000 lives over the next 100 years.

Asbestos Duty Requirements: The duty to manage requires those in control of premises to:

• Take reasonable steps to determine the location and condition of materials likely to contain Asbestos;
• Presume materials contain Asbestos unless there is strong evidence that they do not;
• Make and keep an up to date record of the location and condition of the ACMs or presumed ACMs in the premises;
• Assess the risk of the likelihood of anyone being exposed to fibres from these materials;
• Prepare a plan setting out how the risks from the materials are to be managed;
• Take the necessary steps to put the plan into action;
• Review and monitor the plan periodically; and
• Provide information on the location and condition of the materials to anyone who is liable to work on or disturb them.

Which premises are affected?
The new regulation covers all non-domestic premises, whatever type of business is carried out in them. It also covers the common areas of domestic premises, including halls, stairwells, lift shafts and roof spaces.

Who will be the Duty Holder?
All those who have responsibility for the maintenance and/or repair of non-domestic premises have duties under this regulation. The extent of the legal duty is determined by the terms of any tenancy agreement or contract that applies, and in the absence of any such agreement, on the degree of control the party has over the premises.

The dutyholder may well be the landlord, tenant or a managing agent, depending on the circumstances of each case. In some situations, responsibility could be shared between two or more parties.

The regulation also includes a duty to cooperate, which can be applied widely. This will, for example, require a tenant to allow a landlord to gain access to a building to carry out a survey. Also a building surveyor or architect who had plans which show information on the whereabouts of Asbestos would be expected to make these available to the duty holder; this may incur a reasonable cost.

If you are unsure of who the Duty Holder of your premises is, then please contact us.