Control of Asbestos at Work Regulations 2002
Who is Affected?
The duty to manage asbestos risk in non-domestic premises is placed on ‘the dutyholder’ who is defined as:
- every person who has, by virtue of any contract or tenancy, an obligation in relation to the maintenance or repair of any premises or their means of access;
- where there is no such contract or tenancy, every person who has, to any extent, control of that premises or their means of access
In situations where there is more than one dutyholder, then the relevant contributions from each will be determined by the extent of their respective obligations to maintain and repair the premises.
The Duty Requirements
- a ‘suitable and sufficient assessment’ must be carried out to determine whether asbestos is or is liable to be present in the premises. This includes taking into account building plans and other relevant information, such as the age of the premises. The inspection should cover all reasonably accessible parts of the premises. The dutyholder should presume that materials contain asbestos unless there is strong evidence to the contrary;
- in making the assessment, the dutyholder need only take ‘such steps as are reasonable in the circumstances’;
- the assessment must be reviewed immediately if there is any reason to suspect it is no longer valid or if there has been a significant change in the premises;
- the conclusions of the assessment and every review must be recorded in writing. If the assessment indicates the presence or likely presence of asbestos (or asbestos containing material), a determination of the risk from that asbestos must be made, a written plan identifying those parts of the premises concerned must be prepared specifying the proposed measures to manage the risk. The plan must be kept at the premises;
- the specified measures for managing the risk must include adequate measures for monitoring the condition of any asbestos or asbestos containing material, ensure that it is properly maintained or safely removed and that information concerning its location and condition is provided to every person liable to disturb it and made available to the emergency services;
- the dutyholder must ensure that the plan is reviewed and revised at regular intervals (current opinion indicates that this should be at least every 6 months). If there is a reason to suspect that the plan is no longer valid or there has been a significant change in the premises, then the plan must be revised immediately. The dutyholder must ensure that all measures in the plan are implemented and recorded in writing.
Removal of Asbestos
The Health and Safety Executive has provided the following advice on the removal of asbestos:
- it is only a risk when it releases its fibres. When the material is in good condition and in a location where it will not be disturbed it should be left in place and effectively managed;
- if materials are found to be in a poor condition and/or are likely to be disturbed, then the appropriate option may be removal. However, consideration should be given to firstly repairing or sealing damaged materials. If disturbance of the material is an issue, it may be possible to reorganise the workplace so as to avoid the risk; if so, the materials should be left in place, their presence recorded and then managed and reviewed effectively;
- removal of asbestos in good condition or where it is not likely to be disturbed may give risk to unnecessary risk and expense.
Leasehold Property
Where a lease places the repairing obligations on the tenant, a landlord should ensure the tenant is aware of his obligations under Regulation 4. The landlord should check that the tenant complies with its obligations.
Penalties
The penalties for breaching the regulations can be severe. The maximum penalties for non-compliance are an unlimited fine and two year’s imprisonment.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. Piper Smith Watton cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.