The duty to manage requires those who manage non-domestic premises to protect persons who work in such premises, or use them in other ways, from the risks to health associated with exposure to asbestos.
What is the duty?
The duty to manage asbestos is contained in Regulation 4 of the Control of Asbestos Regulations 2012 and requires the person who has the duty to manage (ie the “dutyholder”) to:
- Take reasonable steps to find out if there are materials containing asbestos in non-domestic premises, and if so, in what amount, where and in what condition;
- Presume materials do 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 these asbestos containing materials – or materials which are presumed to contain asbestos;
- Assess the risk of anyone being exposed to fibres released 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 everyone to co-operate as far as is necessary to allow the dutyholder to comply with the above requirements.
Who has the duty?
In many cases, the dutyholder is the person or organisation 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. 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.
In some cases, there may be no tenancy agreement or contract. Or, if there is, it may not specify who has responsibility for the maintenance or repair of the premises. In these cases, or where the premises are unoccupied, the duty is placed on whoever has control of the premises, or part of the premises. Often this will be the premises owner.
What premises are affected?
The duty to manage covers all non-domestic premises. Such premises include all industrial, commercial or public buildings such as factories, warehouses, offices, shops, hospitals and schools.
Non-domestic premises also include those ‘common’ areas of certain domestic premises e.g. purpose-built blocks of flats or houses converted into flats. The common areas of such domestic premises might include any foyers, corridors, lifts and lift-shafts, staircases, roof spaces, gardens, yards, outhouses and garages – but would not include inside the individual flats themselves. 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.
How do dutyholders comply?
There are three essential steps:
- Find out whether the premises contain asbestos, and, if so, where it is and what condition it is in. If in any doubt, materials must be presumed to contain asbestos;
- Assess the risk ;
- Make a plan to manage that risk and act on it.
Some basic principles to remember are:
- Asbestos is only dangerous when disturbed. If it is safely managed and contained, it doesn’t present a health hazard;
- Don’t remove asbestos unnecessarily – removing it can be more dangerous than leaving it in place and managing it;
- Not all asbestos materials present the same level of risk. The measures that need to be taken for controlling the risks from materials such as pipe insulation are different from those needed in relation to asbestos cement;
- Don’t assume you need to bring in a specialist in every case (for example, you can inspect your own building rather than employ a surveyor). But, if you do employ a surveyor you must make sure that they are competent.
- If you are unsure about whether certain materials contain asbestos you should presume they do and treat them as such;
- Remember that the duty to manage is all about putting in place the practical steps necessary to protect persons from the risk of exposure to asbestos. It is not about removing all asbestos.