Duty Holder? Are You Compliant?

Posted by Breathe Environmental Service on 19th June 2019 -

What is the duty?

The duty to manage asbestos is contained in regulation 4 of the Control of Asbestos Regulations 2012. It requires the person who has the duty (ie the ‘dutyholder’) 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 others to co-operate as far as is necessary to allow the dutyholder to comply with the above requirements.

Who has the duty?

The dutyholder is the owner of the non-domestic premises or the person or organisation that has clear responsibility for the maintenance or repair of non-domestic premises, for example 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 non-domestic 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 owner.

In public buildings, such as hospitals, schools and similar premises, the identity of the dutyholder will depend on how the responsibility for maintenance of the premises is allocated. 

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, such as purpose-built flats or houses converted into flats. The common areas of these premises include foyers, corridors, lifts and lift-shafts, staircases, roof spaces, gardens, yards, outhouses and garages - but would not include the individual flats themselves. Common areas do 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 four essential steps:

1. find out whether the premises contains 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 from asbestos present in the premises
3. make a plan to manage that risk and act on it
4. provide this information to other employers (eg building contractors) who are likely to disturb any asbestos present, so that they can put in place appropriate control while the work is being done.

Here are some basic principles to consider when managing asbestos:

• 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 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
• 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 maintenance workers and others from the risk of exposure to asbestos fibres - it is not about removing all asbestos