Out-Law News 2 min. read

Review asbestos management plans, duty-holders urged

Businesses that own, occupy or manage property should review their asbestos management plans in light of a recent report that revealed the scale of the risk posed by asbestos still present in UK buildings, health and safety experts have said.

Katherine Metcalfe and Liam Jagger of Pinsent Masons were commenting after a study conducted by the Asbestos Testing & Consultancy Association (ATaC) and the National Organisation of Asbestos Consultants (NORAC) highlighted that known asbestos in many properties is not being managed effectively and may be unsafe.

Details of the study, believed to be the largest of its kind, were published in ATaC and NORAC’s first annual report into the extent of asbestos in UK buildings. Despite the use of asbestos being banned in 1999, the report identified that 78% of the 128,761 buildings inspected were found to contain asbestos; 71% of the 710,433 items of asbestos found were recorded as having some level of damage; and 24% of the 507,612 damaged items would be classed as “licensable” work and require a specialist contractor.

Metcalfe and Jagger said publication of the report serves as a timely reminder of duties arising under the Control of Asbestos Regulations 2012.

Metcalfe said: “The Regulations place legal responsibilities on duty-holders to protect anyone using or working in non-domestic buildings from risks to their health due to asbestos exposure. A duty holder can typically be anyone who has control of the building – this may be as a result of their ownership or tenancy agreement.”

“A duty holder must identify the presence of asbestos and manage its risk of exposure. The identification of asbestos containing materials (ACMs) may be done by commissioning an asbestos survey, and the duty to manage may be discharged by the safe removal of the ACMs or the operation of an effective asbestos management plan,” she said.

Metcalfe said there is a presumption that materials contain asbestos unless there is strong evidence to indicate otherwise. Training is mandatory for anyone liable to be exposed to asbestos fibres at work, such as maintenance workers.

Jagger said: “Before any work is undertaken in relation to ACMs, a duty holder will need to consider whether the work is classed as “licensable” work and requires the instruction of a specialist contractor. This work includes most asbestos removal, all work with sprayed asbestos coatings and asbestos lagging and most work with asbestos insulation. For any non-licensable work, it is important that effective controls are implemented from the outset and in some cases it is necessary to notify the relevant enforcing authority.” 

Failing to comply with the Regulations is a criminal offence, which carries with it the risk of an unlimited fine or a potential custodial sentence. There have been several high-profile prosecutions that have resulted in significant fines as a result of asbestos related offences. For example, in September 2022, Poundland was fined £565,000 following its failure to properly manage asbestos at one of its buildings, despite it having identified asbestos when it acquired the building in 2011 and instructing consultants to monitor the asbestos thereafter. 

Metcalfe said: “It is clear that asbestos management continues to remain a priority for enforcing authorities. It is therefore important for duty holders to ensure that they operate effective asbestos management plans and that these are kept under review so that they can be sure that previous control measures continue to remain appropriate.”   

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