Regulation 4 of the Control of Asbestos Regulations 2012 (CAR) (or in Northern Ireland, Regulation 4 of the Control of Asbestos at Work Regulations 2007, as amended), requires employers and some landlords to be aware of any asbestos in their properties and to manage it in such a way as not to put anyone at risk.
Why is asbestos dangerous?
Asbestos dust can cause fatal diseases even when someone is exposed only to minute quantities. The more dust you are exposed to the more likely you are to become ill.
Where is asbestos?
Asbestos was used in many building products including wall panelling, fireproofing, ducting covers, pipework etc., and in some unusual places such as in thermoplastic floor tiles and decorative wall coverings (Artex, etc.). Millions of tons were used. The location and condition of most of it are not known. Buildings built in the 1950s, 1960s and 1970s are likely to contain large quantities of asbestos. Asbestos can only be properly identified by specialist techniques.
Who is at risk?
Most at risk are those who maintain or demolish buildings such as electricians, plumbers, carpenters, and decorators, but also included are caretakers and odd-job staff, anyone who is likely to cut, drill, smash or disturb asbestos and create dust in any way. People in the vicinity of such work can also be affected (office workers when an office is being rewired for telephones or computers, tenants when plumbing repairs are being done in service ducts on their property).
The English, Northern Irish, Scottish and Welsh legislation are the same and is discussed below.
Regulation 4
Regulation 4(1)
Defines who is a "dutyholder", i.e. who is legally responsible under this regulation. This includes everyone who has any obligation, either by being the landlord or by a contractual arrangement, for maintaining or repairing non-domestic premises. Where there is no contract or tenancy the person in control of non-domestic premises is the dutyholder. Shared arrangements are defined. The guidance says where a change in ownership or tenancy occurs relevant information about the presence of asbestos should be passed on.
Regulation 4(2)
Everyone is required to co-operate with the dutyholder. The guidance identifies architects, surveyors, building contractors, etc. here.
Regulation 4(3)
The dutyholder must carry out a suitable and sufficient assessment of whether asbestos is present in any premises.
Regulation 4(4)
In making the assessment such steps as are reasonable in the circumstances shall be taken and the condition of any asbestos present shall be considered
Regulation 4(5)
The dutyholder shall also:
- Take into account building plans, other relevant information and the age of the premises.
- Inspect the reasonably accessible parts of building.
Regulation 4(6)
- Review the assessment if there is reason to believe it is no longer valid or there has been a significant change to the premises
Regulation 4(7)
The duty holder must record the conclusions of the assessment including any reviews.
Regulation 4(8)
Where the assessment shows that asbestos is present or liable to be present the dutyholder shall:
- Determine the risk from that asbestos.
- Have a written plan or drawing of where the asbestos could potentially be found.
- Specify in the plan the measures to be taken for managing the asbestos risks
Regulation 4(9)
The plan should include adequate measures for:
- Monitoring the condition of any asbestos or any material suspected of containing asbestos.
- Ensuring any such substances are properly maintained or where necessary safely removed.
- Ensuring information about the location and condition of the above is provided to any person likely to disturb it and to the emergency services.
The guidance gives two examples of how plans may be managed, representing two distinctly different approaches:
- 1a - full professional survey with sampling and professional analysis leading to once and for all removal of asbestos.
- 2a - presumption that all likely materials do contain asbestos plus an intention to deal with it as needed. Have systems in place that prevent any work being done on anything that might contain asbestos until professional analysis is carried out and any necessary removal completed safely before work commences.
The HSE comments that most situations are likely to lie somewhere between these two examples.
The Approved Code of Practice and guidance: The management of asbestos in non-domestic premises (ACoP) states no one must work on asbestos-containing materials unless the requirements of the Asbestos Regulations are complied with. The guidance says as a minimum the condition of the material should be checked every 6-12 months even if it is in good condition and not likely to be disturbed. The guidance suggests the labelling of all asbestos as one way of alerting people.
Regulation 4(10)
The dutyholder must:
- Review the plan regularly and also when there is reason to suspect it is no longer valid or there has been significant change to the premises
- Ensure measures specified in the plan are carried out
- Ensure measures taken to implement the plan are recorded
The guidance states that as a minimum, the arrangements should be reviewed every six months even if there have been no changes.
Other legislation
There is other legislation, notably the Defective Premises Act 1972 (not applicable in Scotland) (or Defective Premises (Northern Ireland) Order 1975 and the Environmental Protection Act 1990, that may be useful in circumstances not covered by the new regulations where asbestos is present in buildings, particularly rented domestic accommodation.
Safety representatives
Where there are trade union safety reps at a workplace the employer is legally bound to consult with them in good time on the planning and implementation of systems to meet the requirements of this or any other regulation (Regulation 4A, Safety Representatives and Safety Committee Regulations 1977).
