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Action on asbestos

This content applies to England & Wales

Action that can be taken to deal with asbestos, and the legal requirements when dealing with asbestos containing materials (ACMs). Action that should be taken and how to take it.

What action should be taken

There is a legal duty to manage asbestos in non-domestic premises whatever type of business is carried out in them. This also covers the common areas of residential rented properties, including halls, stairwells, lift shafts, and roof spaces.[1]

Since May 2004 every duty holder has to:

  • find out whether your building contains asbestos, and what condition the asbestos is in
  • assess the risk, eg if the asbestos is likely to release fibres
  • make a plan to manage that risk.

The landlord should either label the asbestos, seal it or remove it. The appropriate course of action depends on the particular circumstances of the situation.

If the asbestos is in good condition, then the Health and Safety Executive recommends that a note is made by the landlord of the existence of the asbestos, on building plans or other records, that this information is kept up to date, and a register is set up of the location of the asbestos.[2] The Health and Safety Executive also recommends that the asbestos is labelled, or, if not, steps are taken to ensure that anyone who might work on the material knows that it contains asbestos.

From 1 April 2013, if a landlord registered as a provider of social housing (including a local authority) fails or delays to act on an occupier's report of asbestos in the premises, the occupier can also complain to the Housing Ombudsman Service following the appropriate complaint procedure.

Prior to 1 April 2013, the competent Ombudsman for complaints against local authorities was the Local Government Ombudsman. In one case, the Ombudsman criticised a local authority for only writing to new tenants about the risks posed by asbestos.[3] The Health and Safety Executive adds that it can save time and confusion to make a note of non-asbestos material that could be mistaken for asbestos materials.

If the asbestos is in poor condition, the Health and Safety Executive states it must be sealed or removed. Sealing is cheaper, easier and less disruptive, but removal is the only foolproof method of treatment. Ordinary paint or wallpaper is not an adequate seal. When asbestos is sealed, it should be labelled and the tenant informed of its presence and the risk if asbestos dust is released through DIY or other work.

The Health and Safety Executive recommends that if asbestos is likely to release dust and cannot be easily repaired and protected, or is likely to be disturbed during routine maintenance work, then it must be removed.

How action is to be taken

Landlords have a general duty to carry out work properly.[4] Where the landlord is contractually obliged to repair or maintain a property, then there is the possibility of an action for breach of statutory duty based on any defect in the property.[5] In the absence of such a breach it may be possible to bring an action for negligence where the landlord failed to take reasonable care to ensure that occupiers were not exposed to a foreseeable risk of asbestos-related injury.[6] For more information, about such courses of action see Non-contractual rights.

Repairs requiring more than two hours' work and involving asbestos lagging or asbestos coating must be carried out by someone who is licensed by the Health and Safety Executive under the Asbestos (Licensing) Regulations 1983.[7] A list of contractors licensed under these regulations can be found on the Health and Safety Executive website. Under the Asbestos (Licensing) Regulations 1983, if a person is working with asbestos insulation, asbestos coating or asbestos insulating board, s/he must hold a licence. A licence is also required if the contractor uses a scaffold to create an enclosure for working with asbestos.

Most contractors are members of the Asbestos Removal Contractors Association. The Association publishes useful guidelines about the treatment of asbestos.

Employers who are carrying out repair work are obliged under the Health and Safety at Work etc Act 1974 to protect their employees and the general public, eg tenants, who may be affected by their work.[8] The employer must also make an assessment of the risks to the health and safety of its employees and the general public.[9]

The Health and Safety Executive publishes guidance notes and codes of practice for employers who work with asbestos. It also investigates alleged breaches of the Act and can serve either an improvement notice or, in more serious situations, a prohibition notice to remedy the breach.[10] The Health and Safety Executive may undertake prosecutions against employers who do not protect their employees from the dangers of asbestos. In 1998, Walsall Council was fined £35,000 for the removal of ceiling tiles containing asbestos in the foyer of two tower blocks, which endangered a carpenter, an electrician and a council caretaker.[11]

In a hearing in 2001, two operatives employed by Monmouthshire Heating in the refurbishment of boiler plant and associated pipework at council premises (Royal Chambers, Newport) removed insulation to existing pipework, which contained amosite and chrysotile asbestos. The contractor was not licensed and as such no precautions taken. It was likely that these operatives, and possibly third parties including the caretaker of building were exposed to asbestos fibres. Neither the client nor consulting engineers had given any indication of the presence of asbestos despite knowledge of client to this effect. The company was found guilty on three charges under the Asbestos (Licensing) Regulations 1983 and the Control of Asbestos at Work Regulations 1987.

If a landlord is to demolish a building, it should inform the local authority, who can impose conditions to ensure that the demolition is carried out safely.[12] If a building poses a danger, the local authority can impose emergency measures to remove the danger.[13] The appropriate officer at the local authority is likely to be a building control officer.

[1] reg 4 Control of Asbestos at Work Regulations 2002 SI 2002/2675.

[2] A short guide to managing asbestos in premises, HSE, December 2004; Managing asbestos: your new legal duties; HSE, June 2003.

[3] Complaint 88/A/1336.

[4] s.1 Defective Premises Act 1972.

[5] s.11 landlord and Tenant Act 1985; s.4 Defective Premises Act 1972.

[6] for example, see Lugay v Hammersmith and Fulham LBC [2017] EWHC 1823 (QB).

[7] SI 1983/1649.

[8] s.3 Health and Safety at Work etc Act 1974.

[9] Management of Health and Safety at Work Regulations 1999 SI 1999/3242.

[10] ss.21-24 Health and Safety at Work etc Act 1974.

[11] Source: British Asbestos Newsletter 38.

[12] ss.80-83 Building Act 1984.

[13] ss.77-78 Building Act 1984.

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