Asbestos safety

The new duty

The purpose of the Control of Asbestos at Work Regulations 2002 is to protect workers from exposure to asbestos. They include a new duty to manage asbestos. The new duty in the regulations seeks to ensure that asbestos in premises will be located, recorded and managed and any persons who may disturb it are informed of its location so they can take suitable precautions. This new duty has far reaching implications for owners, landlords and tenants of the property and anyone involved in construction, refurbishment and facilities management both from a regulatory and a contractual perspective.

The 2002 Regulations replace the Control of Asbestos at Work Regulations 1987 as amended. In terms of regulation 4 of the new regulations and the supporting Approved Code of Practice (ACOP) (both of which come into effect on 21 May 2004), if you own, occupy, manage or have responsibility for premises which may contain asbestos you will either have:

• a legal duty to manage the risk from this material; or
• a duty to co-operate with whoever manages that risk – these parties may include owners of the buildings, occupiers, landlords, managing agents, surveyors, sub-tenants and architects.

• Finding out if there is asbestos in the premises, the amount and what condition it is in;
• Presuming materials contain asbestos, unless there is strong evidence that they do not;
• Making and keeping up to date a record of the location and condition of the asbestos-containing materials or presumed asbestos-containing materials in the premises;
• Keeping a check on the condition of asbestos and presumed asbestos materials;
• Assessing the risk from the material;
• Preparing a plan that sets out in detail how the risk from this material will be managed;
• Taking steps needed to put the plan into action;
• Reviewing and monitoring the plan and the arrangements made to put it in place; and
• Providing information on the location and condition of the material to anyone who is liable to work on or disturb it.

The dutyholder

The “dutyholder” is defined in the Control of Asbestos at Work Regulations 2002 as:

“(a) every person who has, by virtue of a contract or tenancy, an obligation of any extent in relation to the maintenance or repair of non-domestic premises or any means of access thereto or egress therefrom; or

“(b) in relation to any part of non-domestic premises where there is no such contract or tenancy, every person who has, to any extent, control of that part of those non-domestic premises or any means of access thereto or egress therefrom.

“And where there is more than one dutyholder, the relative contribution to be made by each such person in complying with the requirements will be determined by the nature and extent of the maintenance and repair obligations owed by that person.”

The extent of the legal duty is determined by the terms of the tenancy agreement or contract that applies, and in the absence of any such agreement or where the premises are unoccupied, on the degree of control of the premises. Various pieces of legal documentation may have to be reviewed to determine who the dutyholder is – in most cases it will be the lease, but it may also be necessary to consider managing agreements, PFI contacts, title deeds and outsourcing agreements.

Notwithstanding that the statutory definition of the “duty-holder” specifically refers only to “non-domestic premises”, the Health and Safety Executive’s Approved Code of Guidance (paragraph 7) and the guidance on the Health and Safety Executive’s website state that the duty to manage asbestos in premises applies to all non-domestic premises, which includes the common parts of domestic premises. The ACOP states that legal precedents have established that common parts of flats are not part of the private dwelling and therefore are classed as non-domestic – the definition of domestic premises in section 53 of the Health and Safety at Work etc Act 1974 (the new 2002 Regulations are made by enabling legislation in the 1974 Act) states that:

Domestic premises means “premises occupied as a private dwelling (including garden, yard, garage, outhouse or other appurtenance of such premises which is not used in common by the occupants of more than one dwelling), and non-domestic premises shall be construed accordingly”.

The English case of Westminister City Council v Select Managements [1985] 1 All ER 897 held that premises which are not in the exclusive occupation of the occupants of a private dwelling, such as lifts serving the common parts of a block of flats, are non-domestic premises. Although this is an English case the Health and Safety at Work etc Act 1974 and the Control of Asbestos at Work Regulations 2002 apply in Great Britain and as a result the case is persuasive but not binding.

Clearly this is a significant issue which will substantially increase the number of dutyholders. The type of premises covered will therefore include the common parts of housing developments, purpose built blocks of flats and in some cases conversions to flats, but regulation 4 does not place any duties on landlords in respect of individual houses or flats. Examples of common parts in domestic property given in the ACOP include: staircases, lifts, shafts, gardens, yards, outhouses, boilerhouses, foyers and corridors in a block of flats. The ACOP however states that rooms within a private residence that are shared by more than one household, such as bathrooms, kitchens etc in shared houses and communal dining rooms and lounges in sheltered accommodation, on the other hand are not deemed to be common parts.

An office block example

The landlord may retain control of the common parts of a block of offices while the tenant in occupation is responsible for the internal parts of the premises they occupy. In this situation the tenant would have to identify all accessible asbestos-containing materials (ACMs) and assess their condition in the areas of the premises they are responsible for. The owner would have to do the same for the remainder of the premises and either forward all the relevant information to the tenant or alternatively carry out the assessment for the whole building and then provide the tenant with the information. A joint plan would need to be prepared and implemented. In addition, the landlord and tenant must ensure that information on the location and condition of any ACMs is given to anyone likely to disturb the material.

Negotiating responsibility for maintenance and repair of premises will therefore be an important consideration.

The owner/leaseholder may transfer all or some of the responsibilities for repair and maintenance to a managing agent and the agent would then be required to carry out the actions in the same way as an owner. This does not necessarily mean that the owner has absolved himself of his legal obligations. In addition, if the terms of the tenancy are altered substantially or if the building is vacated then the owner/landlord/tenant must make sure that all relevant information is passed to any new dutyholder.

The existing duty

There is currently a duty to manage asbestos in buildings under section 4 of the Health and Safety at Work Act 1974 – this Act places a duty on a party that controls a building to ensure that the premises and any plant or substance therein are safe and present no risks to health (asbestos that is fully contained, e.g. between walls could be safe and present no risks to health). Both domestic and non-domestic premises come within the ambit of duty in the 1974 Act. The obligation in the 1974 Act is therefore all encompassing and includes both the common parts and the individual private dwellings of domestic premises, but the 1974 Act does not create a specific obligation to manage the asbestos through surveys and a plan as detailed above.

There are also obligations on a landlord of domestic premises (including individual houses or flats) under the Civic Government (Scotland) Act 1982 - a landlord is under a duty to take reasonable care to ensure that the tenants and other people are safe from personal injury or disease caused by defect in the state of premises.

The obligations in both the 1974 Act and the 1982 Act have been in force for a considerable period of time and they remain in force, but the new specific asbestos duties will be the focus of an enforcement campaign by the Health and Safety Executive.

Douglas A J Taylor, Maclay Murray & Spens