Asbestos risks – what registered providers need to know

Registered providers must be careful to ensure they meet their legal responsiblities in relation to asbestos as the consequences of getting it wrong can be severe, writes Amanda Stubbs.

Registered Providers (RPs) who assume that they are meeting their legal obligations as regards asbestos may want to double-check because there are a number of disparate legislative requirements.

There are general obligations under the Control of Asbestos Regulations 2006 to identify asbestos and manage its impact on employees, although the specific 'duty to manage' only applies to asbestos in non-domestic property. There is a catch though : non-domestic property includes the common parts of housing developments, blocks of flats and sheltered housing. These 'common parts' include foyers, corridors, lifts, staircases, boiler rooms, vertical risers and outbuildings. The duty holder for the purposes of managing asbestos risk is anyone, who by virtue of a contract, has responsibility for maintenance. Therefore RPs will be caught in their capacity as landlord and/or owner of premises.

As a duty-holder in respect of the 'common parts' of any domestic property and in respect of any other non-domestic property, such as office accommodation, RPs must :

  • take reasonable steps to find out if there are asbestos-containing materials (ACMs) located in these areas, and if so, how much, where and in what sort of condition;
  • presume materials contain asbestos unless there is strong evidence that they do not;
  • make, and keep up-to-date records of the location and condition of any ACMs, or presumed ACMs;
  • assess the risk of anyone being exposed to the fibres from the materials identified;
  • prepare a plan detailing how the risks posed by these materials will be managed;
  • take the necessary steps to put the plan into action;
  • periodically review and monitor the plan to ensure it remains relevant and up-to-date; and
  • provide information on the location and condition of the materials to anyone liable to work on them or disturb them.

In addition, as employers RPs have a duty to protect their employees from exposure to asbestos wherever demolition, maintenance or other work is being undertaken, including within social domestic properties; this includes carrying out a suitable risk assessment as to the presence and condition of asbestos at the premises. The relevant guidance is found in HSG-264 which was published last year and requires that site-specific asbestos surveys should be carried out in advance of planned construction or refurbishment work.

The Control of Asbestos Regulations are currently being revised to implement related European legislation; while the changes will not affect the broad approach of the current legislation, they will limit the types of lower-risk work that can be exempted from the requirements to notify work, provide regular medical examinations and keep records. The HSE is planning to publish its response in February following a recent consultation exercise on the changes, with a view to fresh Control of Asbestos Regulations coming into force from April 2012.

In addition to the Control of Asbestos Regulations there are also important legal duties under the Health and Safety at Work Act 1974 that are designed to protect employees and third parties such as tenants from the risk of asbestos:

  • all employers need to conduct their work in a manner that prevents their employees from being exposed to health and safety risks, and
  • provide information on potential health and safety risks in the workplace to other people;
  • employers and the self-employed have duties towards those who are not in their employment; and
  • there are general duties for anyone who has control, to any extent, over a workplace.

The Management of Health and Safety at Work Regulations 1999 are also relevant to those responsible for domestic properties; employers are required to assess the health and safety risks to staff and third parties who may be affected by their work in domestic premises that are used as a place of work.

The Construction, Design and Management Regulations 2007 will usually apply to any refurbishment or demolition work, requiring employers to have in place arrangements to deal with asbestos during construction work, and stipulating that designers and contractors bidding for such work must be provided with project-specific information about the presence of asbestos.

RPs need to have a handle on the extent of their legal duties because if something goes wrong, the financial penalties and negative PR can be significant and the health implications extremely serious.

Amanda Stubbs is a partner in the Manchester office of Trowers & Hamlins. She can be contacted on 0161 838 2075 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..