Asbestos in housing

Asbestos refers to naturally occurring fibrous materials that have crystallised to form fibres. Asbestos was widely used in construction because it is strong, durable and resistant to heat and fire.

Asbestos can pose serious health risks if disturbed.

Types of asbestos

Blue and brown asbestos are the most dangerous forms. The asbestos industry introduced a voluntary ban on blue asbestos in 1970 and brown asbestos in 1980. Both blue and brown asbestos were officially banned in 1986.[1]

The use of white asbestos was controlled and eventually banned outright in 1999. There are some exemptions for particular types of industrial use.[2]

It is illegal to use asbestos in new buildings. The presence is not illegal in buildings built before the bans were introduced.

Where asbestos might be found

Asbestos was widely used in construction, particularly in buildings such as tower blocks.

Asbestos might be found in:

• roofing

• ceiling or floor tiles

• wall panels

• cement fireplace surroundings

• pipe or boiler lagging

• fuse boxes, millboard, paper and paper products used for insulation of electrical equipment

• ventilation ducts

• storage heaters

Asbestos paper has also been used as a fire-proof facing on wood fibreboard.

Find out more about the use and dangers of asbestos in the HSE guidance.

Asbestos can produce very small fibrous dust particles which are too small to be seen by the naked eye.

Asbestos is dangerous when it is disturbed, and the fibres become airborne and are breathed in.

Health risks from asbestos

Asbestos can cause serious and fatal health conditions, including asbestosis, lung cancer and mesothelioma.

The Health and Safety Executive estimates that at least 3,500 people in the UK die each year from mesothelioma and asbestos-related lung cancer, as a result of past asbestos exposure. There is no cure for asbestos-related diseases.

Exposure to asbestos

There can be a long time between the first exposure to asbestos dust and the onset of disease. This can be between 15 and 60 years.

Exposure to asbestos was highest during the 1950s and 1960s. Many cases of mesothelioma are due to heavy asbestos exposures in industries like shipbuilding and railway engineering.

Asbestos removal workers continue to be at risk, as are workers involved in the refurbishment, repair or maintenance of buildings. For example, plumbers, carpenters and electricians.

Work on asbestos creates dust that may release fibres. Work that could disturb or release asbestos dust includes any action which scratches, perforates or otherwise damages its surface, for example:

• DIY work, attaching items such as shelving, picture hooks or light switches

• routine maintenance work, such as that carried out by an electrician on a boiler, which may disturb asbestos present in the boiler lagging

Testing for asbestos must be done professionally. Testing for asbestos or any work that may create asbestos dust must never be attempted by the occupier or someone who is not qualified.

If a tenant or homeowner suspects that asbestos may be present in their home, they should contact:

• the local authority's environmental health department

• their landlord

The local authority should investigate and, if asbestos is detected, take action to ensure that the occupier is not put at risk.

Some local authorities have specialist teams to deal with asbestos in their properties.

If the local authority fails to investigate, the occupier could obtain an expert's report to find out if asbestos is present.

There is a legal duty to manage asbestos in non-domestic premises whatever type of business is carried out in them. This includes the common areas of residential rented properties, including halls, stairwells, lift shafts, and roof spaces.[3]

The landlord or owner should:

• find out whether a building contains asbestos, and what condition the asbestos is in

• assess the risk, for example if the asbestos is likely to release fibres

• make a plan to manage that risk

When asbestos is identified

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

If the asbestos is in good condition, the Health and Safety Executive recommends that[4]:

• a note is made by the landlord of the existence of the asbestos, on building plans or other records

• this information is kept up to date

• a register is set up of the location of the asbestos.

The Health and Safety Executive recommends that the asbestos is labelled. Or, if not labelled, steps should be taken to ensure that anyone who might work on the material knows that it contains asbestos.

When asbestos should be removed or sealed

The Health and Safety Executive states that asbestos in poor condition must be sealed or removed.

The Health and Safety Executive recommends asbestos must be removed if it is likely to:

• release dust and cannot be easily repaired and protected

• be disturbed during routine maintenance work

Sealing asbestos can be a cheaper, easier and less disruptive solution, but removal is the only definitive method of treatment.

Ordinary paint or wallpaper is not an adequate seal.

When asbestos is sealed, it should be labelled. The tenant should be informed of its presence and the risk if asbestos dust is released through DIY or other work.

Landlords have a general duty to carry out work properly.[5] This includes the safe removal or sealing of asbestos.

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.[6]

A tenant could 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.[7]

Who can remove asbestos

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.[8]

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, they 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 people, who may be affected by their work, including:[9]

• their employees

• the general public, for example tenants

The employer must also assess the risks to the health and safety of its employees and the general public. [10]

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 [11]:

• an improvement notice

• a prohibition notice to remedy the breach

The Health and Safety Executive can prosecute 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. This work endangered a carpenter, an electrician and a council caretaker.[12]

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 were taken. It was likely that these operatives, and possibly third parties including the caretaker of the building, were exposed to asbestos fibres. Neither the client nor consulting engineers had indicated the presence of asbestos despite knowledge of the 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.[13] If a building poses a danger, the local authority can impose emergency measures to remove the danger.[14] The appropriate officer at the local authority is likely to be a building control officer.

A tenant can complain if their landlord fails to respond, or responds inadequately, to the presence of asbestos.

A tenant can complain as an individual or with other tenants.

A local authority or registered social landlord should have a complaints procedure that the tenant can use. A complaint is usually investigated by an officer who has not already been involved in the matter.

The tenant could complain to the Ombudsman if:

• they are not satisfied with the outcome of the complaint

• the landlord does not have a complaints procedure

A local authority tenant should contact the Local Government Ombudsman. A housing association tenant should contact the Housing Ombudsman Service.

The Ombudsman will investigate the case. If maladministration is found, they are likely to recommend that the landlord takes certain actions and pays compensation to the tenant.

In one case, the Local Government Ombudsman ordered Southwark Council to pay compensation to a tenant who had waited eight months for damaged asbestos to be dealt with. The Ombudsman criticised the council for not implementing its asbestos policy, and for only writing to new tenants about the risks posed by asbestos.[15]

Joint tenant action

There are a number of cases where joint tenant action has persuaded a landlord to deal with asbestos. For example, in 1995, the Tenants' Association on the Heygate Estate in the London Borough of Southwark compelled the council to remove asbestos from some high-risk areas and distribute a leaflet to all tenants advising against DIY work that may cause asbestos dust.

The presence of asbestos alone does not constitute disrepair.

If asbestos is damaged or deteriorates, and there is the risk of asbestos dust, then the landlord should act to prevent disrepair or risks to health and safety.

A landlord might have obligations under:

• the Housing Health and Safety Rating System under under Part 1 of the Housing Act 2004

• statutory nuisance under the Environmental Protection Act 1990

• implied contractual rights under the Landlord and Tenant Act 1985 and

• defective premises under the Defective Premises Act 1972

The Housing Health and Safety Rating System

A local authority has a duty to keep housing conditions in their area under review and inspect for hazards under the Housing Health and Safety Rating System (HHSRS) [16].

Where appropriate, the local authority must inspect any residential premises to determine whether hazards exist.[17]

There are 21 prescribed hazards under the Housing Health and Safety Rating System, including asbestos (and man-made mineral fibres (MMF)).

Guidance says an assessment should include:

• identifying any asbestos present in the property

• assessing the vulnerability of the asbestos to damage

• assessing the extent of any current damage and possible fibre release

If present, the type of asbestos should also be identified. Sampling may be necessary to confirm the presence of asbestos and the type.[18]

If the asbestos poses a hazard to health, it must be classed as either a category 1 or 2 hazard. Where a category 1 hazard exists, the local authority must take enforcement action. [19]Housing Health and Safety Rating System (England) Regulations 2005 SI 2005/3208 ]

Find out more about local authority HHSRS enforcement action on Shelter Legal.

Statutory nuisance

The presence of damaged asbestos in a dwelling could be considered to make the premises a statutory nuisance under the Environmental Protection Act 1990. For example, the premises are prejudicial to health.[20]

Local authorities have a duty to detect and investigate any complaint of statutory nuisance.[21]

Where satisfied that a statutory nuisance exists, the local authority should serve an Abatement Notice.[22]

This notice is usually served on the person responsible for the premises. For example the landlord.

If the person responsible does not comply with the notice, the local authority can take further action, such as: [23]

• criminal prosecution for breach of the notice

• court proceedings to ensure the notice is complied with

• or carry the work out itself

Section 11 of the Landlord and Tenant Act 1985

Under section 11 of the Landlord and Tenant Act 1985 a landlord must keep in repair the structure and exterior of the property.

Asbestos in an external wall or the roof will therefore be part of the structure or exterior. A party wall – 'a material or significant element in the overall construction of the property' – is also part of the structure.[24]

If the landlord is in breach of its obligations under section 11, then the tenant can sue for breach of contract and seek an order for specific performance to have the required work carried out.

Find out more about repairs under section 11.

Defective premises

Where the landlord is the builder of the property, they have a duty to ensure the property is not defective.[25]

This is not the case if the landlord did not build the property. Although the landlord still has a duty of care to tenants and others who might reasonably be affected by defects if there is a breach of repairing obligations. [26]

Breach of these duties is a 'tort' (a civil wrong). A tenant might be able to sue the landlord for compensation and seek an order to have the required work carried out, usually under the Defective Premises Act 1972.

A former tenant who has purchased their property from the local authority or a registered social landlord could take action if they can show that the property was not built properly.[27] They could take action against the:

• local authority

• registered social landlord

• building contractor

This might be difficult to prove with older properties, constructed before the builder could have reasonable forseen the dangers that asbestos could pose.

The owner-occupier must generally take any action within six years of the date when the work was finished.[28] However, if the action includes a claim for compensation for personal injury or illness, the owner-occupier must take action within three years from either the:

• date when 'the cause of action accrued'

• time when the occupier first became aware of the defect that caused the illness.

A local authority or registered social landlord is not obliged to tell the occupier at the time of purchase about asbestos. This is because, under the right to buy and right to acquire schemes, local authorities and registered social landlords are only obliged to inform prospective purchasers of structural defects[29] Asbestos is not a structural defect.

In some cases, asbestos might pose no risk to health if it remains undisturbed. In this situation the landlord might not legally be obliged to act.

An occupier might still want asbestos to be dealt with to be certain that it cannot cause a risk of health.

An occupier, or a group of occupiers such as a tenants' association, might be able to compel a landlord to take action about the presence of asbestos. For example, by complaining to the Housing Ombudsman or Local Government Ombudsman, local councillors or alerting the local media.

A tenant does not have an automatic legal right to be rehoused during repair work.

If the repair work involves the removal of asbestos, and there is a risk of asbestos dust, a landlord might need to rehouse tenants temporarily or permanently.

If the repair involves sealing the asbestos, this should not create asbestos dust.

If the asbestos is a statutory nuisance and the occupier has to find temporary accommodation themselves, they can take action against the landlord by making a complaint to the magistrates' court.[30]

The magistrates' court can order that the landlord pays compensation to the court for the cost of the temporary housing if it finds that the landlord has failed to abate the nuisance. If the tenant is a tenant of a registered social landlord or a private landlord the environmental health department can take this action on behalf of the landlord.