Asbestos in housing

Asbestos was widespread in its use because it is strong, durable and resistant to heat and fire. 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. Legislation banned both in 1986.[1] The use of white asbestos was controlled and eventually banned outright in 1999, with some exemptions for particular types of industrial use.[2]

The bans mean that it is illegal to use asbestos in new buildings. Its presence is not illegal in buildings built before the bans were introduced.

Due to its widespread use in the past, particularly in system-built blocks of flats such as tower blocks, asbestos may be found in:

• roof tiles

• corrugated roofing

• wall panels

• ceiling tiles

• floor tiles

• cement fireplace surrounds

• pipe lagging

• boiler lagging

• airing cupboard walls

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

• rubbish chutes

• ventilation ducts

• storage heaters

• asbestos paper has also been used as a fire-proof facing on wood fibreboard

See HSE guidance for more information about the use and dangers of asbestos.

The widespread presence of asbestos and the risk to health through exposure to it makes asbestos dangerous. Asbestos can produce very small fibrous dust particles that can cause asbestosis, lung cancer and mesothelioma, and eventually death. Fibres are too small to be seen by the naked eye.

The danger arises when asbestos is disturbed and the fibres become airborne and are breathed in. The thin asbestos fibres can become lodged in the tissue of the chest, and the body's natural defences may not be able to break them down.

There is a long period between the first exposure to asbestos dust and the onset of disease. This can be between 15 and 60 years. There is no cure for asbestos-related diseases.

The Health and Safety Executive estimates that at least 3,500 people in the UK die each year from mesothelioma (a cancer of the inner lining of the chest wall or abdominal cavity) and asbestos-related lung cancer, as a result of past exposure to asbestos. The vast majority of people now dying were exposed to asbestos in the 1950s and 1960s when the use of asbestos was at its peak. Analyses of mesothelioma deaths indicate that many deaths are due to heavy asbestos exposures in industries like shipbuilding and railway engineering in the past.

Asbestos removal workers continue to be at risk, as are workers involved in the refurbishment, repair or maintenance of buildings, such as plumbers, carpenters and electricians, if control measures are not adhered to.

Work on asbestos creates dust that may release the 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, and 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. Under no circumstances should testing for asbestos or any work that may create asbestos dust be attempted by the occupier or someone not qualified to carry out such work.

If a tenant or homeowner thinks that asbestos may be present in their home, they must contact the environmental health department at the local authority for advice. Tenants should also contact 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, and produce information specifically for tenants and residents in the area. Advisers should check whether their local authority has such a team or information.

If the local authority fails to investigate, the occupier could obtain an expert's report to find out if asbestos is present. That evidence may be required for the purpose of possible proceedings for statutory nuisance.

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.[3]

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, for example 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, 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.[4]

The Health and Safety Executive also recommends that the asbestos is labelled, or, if not, that 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.[5] 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.

The Health and Safety Executive states that asbestos in poor condition 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.

Landlords have a general duty to carry out work properly.[6] 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.[7] 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.[8]

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.[9] 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 their employees and the general public, for example tenants, who may be affected by their work.[10] The employer must also make an assessment of the risks to the health and safety of its employees and the general public.[11]

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.[12] 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.[13]

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.[14] If a building poses a danger, the local authority can impose emergency measures to remove the danger.[15] The appropriate officer at the local authority is likely to be a building control officer.

Tenants can complain individually or join other tenants when their landlord fails to respond, or responds inadequately, to the presence of asbestos.

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 of the organisation who has not been involved in the matter already.

If the tenant is not satisfied with the outcome of the complaint, or the landlord does not have a complaints procedure, the tenant could complain to the Ombudsman. For a local authority, they should contact the Local Government Ombudsman; for a registered social landlord, they should contact the Housing Ombudsman Service.

The Ombudsman will investigate the case, and 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 also criticised the council for not implementing its asbestos policy, and for only writing to new tenants about the risks posed by asbestos.[16]

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 itself does not constitute disrepair. However, if it is damaged or deteriorates, and there is the risk of asbestos dust, then the landlord should act to prevent disrepair arising.

There are no specific laws or regulations regarding asbestos and housing. Landlords' obligations arise under the legislation relating to:

• hazards 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

A landlord may also be compelled to act regardless of any legal obligation.

Housing Act 2004

Under the Housing Act 2004 local authorities have a duty to keep housing conditions in their area under review, with a view to taking any action necessary under the provisions of Part 1 of the Act.[17]

Where appropriate, they must inspect any residential premises to determine whether hazards exist.[18] Hazards are classified as either Category 1 or 2. If a Category 1 hazard exists the local authority must take the appropriate enforcement action.[19] The Housing Health and Safety Rating System is the prescribed means for identifying whether Category 1 or Category 2 hazards exist.[20] Asbestos (and man-made mineral fibre (MMF)) is one of the 29 hazards categorised under the Housing Health and Safety Rating System.

The Housing Health and Safety Rating System Operating Guidance says that an assessment should include identifying any asbestos present in the property, assessing the vulnerability of the asbestos to damage, and 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.[21]

The powers available to local housing authorities under Part 1 of the Housing Act 2004 to secure remedies are:

• Prohibition Order

• Improvement Notice

• Hazard Awareness Notice

• Demolition Order

• Clearance Areas

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, in that such premises would be prejudicial to health.[22] Local authorities have a duty to detect and investigate any complaint of statutory nuisance.[23]

Where satisfied that a statutory nuisance exists, the local authority shall serve an Abatement Notice.[24] This notice is usually served on the person responsible for the premises (for example the landlord) and orders that person to abate the nuisance. If the person responsible does not comply with the notice, the local authority can take further action, such as criminal prosecution for breach of the notice, court proceedings to ensure the notice is complied with, and/or carry out the work itself.[25]

Environmental health officers at the local authority normally fulfil this duty, but an environmental health officer cannot serve a notice if the landlord is the local authority. In this situation, and also if any tenant wants to take their own action, they can initiate criminal proceedings by complaining to the magistrates' court,[26] or they can approach the Health and Safety Executive.

Section 11 of the Landlord and Tenant Act 1985

Under section 11 of the Landlord and Tenant Act 1985 it is an implied contractual right that the landlord, whether public or private, 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.[27]

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.

Defective premises

If the landlord is the builder of the property, they have a duty to ensure the property is not defective.[28] 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. [29] Breach of these duties is a 'tort' (a civil wrong), for which a tenant can 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 may be able to take action against the local authority, the registered social landlord, or the building contractor, if they can show that the property was not built properly.[30] However, this is likely to be difficult to prove, particularly with regard to older properties, constructed before the builder could reasonable have foreseen 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.[31] However, if the action includes a claim for compensation for personal injury or illness, the owner-occupier must take action within three years from the date when 'the cause of action accrued' or from the time when the occupier first became aware of the defect that caused the illness.

It is important to note that the local authority or registered social landlord was not obliged to tell the occupier at the time of purchase about the asbestos 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[32] and asbestos is not a structural defect.

Many occupiers are not willing to live with a substance that could cause death even if in the distant future. Even if it poses no risk to health (and while in a sound condition it is better and safer left undisturbed) and the landlord is not legally obliged to act on it, many occupiers want asbestos to be dealt with so that it can never pose a risk.

An occupier, or a group of occupiers such as a tenants' association, may be able to compel a landlord to take action about the presence of asbestos. The use of the local media may help to persuade landlords to take action.

If the landlord is the local authority, then an occupier, or a group of occupiers, may be able to raise the matter with local councillors or at a council meeting as a way of applying pressure on the authority.

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

If the repair work takes the form of removal of asbestos, and there is therefore the attendant risk of the creation of asbestos dust, it would be difficult for a landlord to justify not rehousing tenants temporarily or permanently. However, if the repair work consists only of sealing the asbestos, this argument is not as persuasive because such work 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.[33]

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 – but not of the local authority – the environmental health department can take this action on behalf of the landlord.