The Duty To Manage Asbestos

Regulation 4 of the Control of Asbestos at Work (CAWR) 2002 came into force on the 21st May 2004, and was subsequently updated in 2006 to The Control of Asbestos Regulations which were again updated in 2012.  The duty to manage asbestos covers all non-domestic premises. The regulations place an explicit duty on all commercial property owners, or those who have control of the maintenance of these buildings. Such premises include all industrial, commercial or public buildings such as factories, warehouses, offices, shops, hospitals and schools.

The duty to manage asbestos, contained in regulation 4 of the Control of Asbestos Regulations 2012, requires the “duty holder” to:

  • Take reasonable steps to find out if there are materials containing asbestos in non-domestic premises, and if so, its amount, where it is and what condition it is in.
  • Presume materials contain asbestos unless there is strong evidence that they do not.
  • Make, and keep up-to-date, a record of the location and condition of the asbestos containing materials – or materials which are presumed to contain asbestos.
  • Assess the risk of anyone being exposed to fibres from the materials identified.
  • Prepare a plan that sets out in detail how the risks from these materials will be managed.
  • Take the necessary steps to put the plan into action.
  • Periodically review and monitor the plan and the arrangements to act on it so that the plan remains relevant and up-to-date.
  • Provide information on the location and condition of the materials to anyone who is liable to work on or disturb them.

There is also a requirement on anyone to co-operate as far as is necessary to allow the duty holder to comply with the above requirements.

In many cases, the dutyholder is the person or organization that has clear responsibility for the maintenance or repair of non-domestic premises through an explicit agreement such as a tenancy agreement or contract.

The extent of the duty will depend on the nature of that agreement. For example; In a building occupied by one leaseholder, the agreement might be for either the owner or leaseholder to take on the full duty for the whole building; or it might be to share the duty. In a multi-occupied building, the agreement might be that the owner takes on the full duty for the whole building, or it might be that the duty is 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 the responsibilities to a managing agent.

Non-domestic premises also include those common areas of certain domestic premises: purpose-built flats or houses converted into flats. The common areas of such domestic premises might include foyers, corridors, lifts and lift-shafts, staircases, roof spaces, gardens, yards, outhouses and garages – but would not include the flat itself. Such common areas would not include 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.

There are three essential steps for duty holders to comply:

  1. Find out whether the premises contain asbestos, and, if so, where it is and what condition it is in. If in doubt, materials must be presumed to contain asbestos
  2. Assess the risk
  3. Make a plan to manage that risk and act

Remember: The duty is all about protecting yourself and other people from exposure to asbestos fibres by managing any asbestos present in a building properly. It is not about removing all asbestos. If the asbestos is in good condition and not likely to be disturbed, it is usually safer to leave it in place and manage it, removal may be an unnecessary and costly exercise.