The new duty to manage asbestos – how it will affect you

Introduction

UK deaths caused by exposure to asbestos are presently estimated at 3000 per year, expected to rise to 10,000 by 2010. The use of asbestos in UK buildings was widespread, especially between 1950 and 1985, but continuing right up until its effective banning in 1999. Typically, this was for thermal insulation; as a fire-retardant around structural steelwork, pipes and boilers; and in a variety of cement products, including roofing. Undisturbed and in good condition these materials made buildings safer and more comfortable to work in. However, damaged by drilling, cutting or sawing during routine maintenance or refurbishment, or just through deterioration with age, tiny but potentially deadly asbestos fibres are released. Current expert medical opinion is that the breathing in of just a single fibre may be enough to trigger the terminal cancer, mesothelioma. The expected introduction in the next month of onerous new regulations means that property owners, managers and professionals will need to develop a greater awareness of this hazard and how to deal with it.

The new duty to manage

The Control of Asbestos at Work ("CAW") Regulations 2002 will impose a new duty to manage asbestos. The duty falls primarily, but not exclusively, on employers, who will often be the owner or tenant of work premises. The dutyholderis very widely defined as: every person who has, by virtue of any contract or tenancy, an obligation of any extent for maintenance or repair of non-domestic premises. That wording is intentionally vague; a legal blunderbuss designed to catch even those with a peripheral involvement. For the first time, the dutyholder (and therefore professional advisers acting on their behalf) will have a specific legal duty to take active steps to identify asbestos-containing materials (in the jargon, ACMs) in their buildings. ACM surveys must be completed by Spring 2004. Once located (and laboratory testing will often be needed because ACMs are difficult to identify, even to the trained specialist) the condition of the materials must be assessed and an action plan created, in order to minimise the risk of asbestos fibres being released and breathed in.

The identification exercise will be done either by engaging a specialist surveyor to take a sample of materials for analysis, or by using other strong evidence - proof of the age of the building, for instance, and/or of the actual materials used in its construction/refurbishment. This information must then be recorded in a form which ensures that it gets to all those who may be subject to a risk of exposure, and maintained and updated for the lifetime of every building.

If the ACMs are in good condition and are unlikely to be damaged or disturbed, they will pose no risk and may be left in place. In cases where ACMs are in poor condition and remedial steps are impractical - whether for cost or operational reasons – then removal and safe disposal will be necessary.

Implications for property owners, managers and professionals

From the outset the new regulations will affect all those with an interest in or responsibility for non-domestic property. In due course they are likely to be extended, ultimately to cover all domestic property. Here are five specific suggestions for consideration:

1. Start early to ensure compliance. Although the new regulations have a lead-in time of 18 months and there will not be enforcement action (in other words, prosecutions) by the Health and Safety Executive (HSE) until Spring 2004, the exposure to claims already exists. Further, given estimates of the number of buildings falling within the regulations (ie 4 million plus) and of the shortage of qualified specialists, there may well be insufficient time and resources for all building surveys to be completed by 2004. Those coming late to this task will either have to pay a substantial premium to get the work completed in time or default and run the risk of enforcement action (which includes the risk of fines and/or imprisonment).

2. Choose the surveyor and any contractor very carefully - this is not a job for white van man. The HSE maintains a list of licensed contractors, and the United Kingdom Accreditation Service (UKAS) has accreditation schemes for those qualified to carry out surveys and, separately, laboratory-testing. Those properly qualified (and properly insured) to carry out this hazardous work will charge significantly more than others who take a more relaxed approach. A defective survey will be especially harmful as it is likely to lead to unprotected workers carrying out tasks in hazardous areas.

3. All dutyholders should become aware quickly, if they are not already, of the extent of their obligations under the new Regulations and of the practical implications of the new Code of Practice. HSE seminars and presentations (which are free) have already commenced and will intensify during the autumn months. Details of these, plus free authoritative literature, are available via the HSE website (details belowA)

4. The continuity and integrity of record-keeping will be key to demonstrating compliance with the regulations and protecting dutyholders from subsequent claims. For example, a robust system will be needed to record that visitors to a premises (such as: building contractors; telephone engineers; IT operatives; emergency services and other service providers who may disturb the fabric of the building) have been made aware of the relevant ACMs survey and have complied with necessary precautions in carrying out their work. Compliance with CAW Regulations should be raised at the pre-contractual stage - whether for a purchase, maintenance or refurbishment project - and stipulated in any contract, with clear division of responsibilities. Costs-sharing will be problematic and plans and tenancy agreements will need to be scrutinised in detail.

5. Particular care will need to be taken when relevant insurance policies are being renewed. A House of Lords ruling in June 2002 (Fairchild - v - GlenhavenB) has greatly increased insurance companies exposure to the most serious asbestos disease claims and is part of the reason for massive recent increases in insurance premiums. Questions related to compliance with the new duty to manage will soon be appearing on (EL/PL/PI) proposal forms at renewal. Failure by dutyholders to appreciate the extent of their new obligations, alternatively failure to ensure that the regulations are known about and complied with, may well lead to policy coverage problems once a claim emerges and those details are scrutinised.

Asbestos in not-very-old buildings is a massive problem. Properly managed it is a problem which can be overcome with minimal risks, even though the costs may be significant. In the past, the absence of adequate records may have allowed lax employers (including property owners and their advisers) to escape liability. The introduction of the new regulations means that this will no longer be the case.

Useful links:

For information on the Health & Safety Executive's asbestos campaign, log on to their website here

For further information please contact Simon Chandler at [email protected] or on +44 (0)117 930 7816

This article was first published in Property Week, 4 October 2002.