What are the responsibilities of property owners under the Control of Asbestos Regulations 2012?

Presuming you are the owner of a property in the UK, the fact that you are reading this indicates you already know something about asbestos and the importance of ensuring legal compliance and safety at your building.

If so, you might have heard of the Control of Asbestos Regulations 2012, but you may be unsure of the specific ways in which this legislation applies to you.

In this article, then, our accredited and licensed asbestos consultants at Oracle Solutions have taken a closer look at the responsibilities a property owner has under these regulations. In doing so, our experts seek to answer many of the questions you are likely to have on this subject.

What is the Control of Asbestos Regulations 2012, and why is it important for property owners?

The Control of Asbestos Regulations 2012 – frequently referred to as “CAR 2012” – is the overarching legislation for asbestos management in non-domestic premises in Great Britain. It came into force on 6th April 2012, effectively updating and replacing the Control of Asbestos Regulations 2006.

CAR 2012 contains a broad range of provisions setting out how asbestos should be managed in non-domestic buildings, as well as in the “common areas” of certain domestic premises. Examples of the latter include foyers, staircases, and lifts in blocks of flats, but not the individual flats themselves.

Although this legislation applies to various individuals such as employers and employees, property owners should be especially alert to – and conversant with – Regulation 4 of CAR 2012. This section covers the “duty to manage” asbestos, with the individual or organisation that has this duty being commonly referred to as the “dutyholder”.

The Health and Safety Executive (HSE) advises that the owner of a given building “could” be the dutyholder in accordance with CAR 2012. However, it isn’t always immediately obvious who actually is the dutyholder for a building. So, if you are in any doubt about the situation at your premises, you are advised to seek out professional advice and guidance.

Whatever the specific situation is, these regulations play a vital role in protecting occupants, workers, and the general public. To help achieve this, they place a legal duty on property owners and managers to deal with asbestos risks effectively.

Who is considered the dutyholder under the Control of Asbestos Regulations 2012?

As we referenced above, there can be a degree of uncertainty as to who exactly is the dutyholder for a given non-domestic premises.

This ambiguity is why, as a property owner, it can be a very good idea for you to consult the HSE’s Approved Code of Practice (ACOP) and guidance publication, Managing and working with asbestos. This text – a free PDF copy of which can be downloaded from the HSE website – is aimed at employers, but nonetheless sets out guidance on CAR 2012 that property owners can relatively easily understand.

Here at Oracle Solutions, we have also previously addressed the subject of who constitutes the “dutyholder” under CAR 2012.

To reiterate what we said then – in a nutshell, the dutyholder will be either the owner of the non-domestic premises, or the person or organisation with clear responsibility for maintaining or repairing the building. The latter’s identity may be spelt out clearly in a formal arrangement, such as a tenancy agreement or contract.

So, such individuals as property owners, landlords, and managing agents could all conceivably be “dutyholders” in accordance with CAR 2012, Regulation 4, depending on the situation and circumstances for each given building.

What are the key responsibilities of dutyholders regarding asbestos management?

A fuller rundown of what dutyholders are required to do to comply with the law, is laid out on page 34 of the aforementioned HSE L143 document. However, their primary responsibilities under the regulations can be summed up as follows:

• Identifying asbestos-containing materials (ACMs) in the property
• Assessing the condition and risks associated with ACMs
• Creating and maintaining an asbestos management plan
• Informing and training employees and contractors about asbestos risks.

How should property owners identify and assess asbestos in their buildings?

A key obligation that dutyholders have under CAR 2012, is to take reasonable steps to determine whether there are ACMs in their property. If ACMs are indeed present in the building, the dutyholder will also be expected to gather information about the location(s), amount(s), and condition of those materials.

So, how exactly might you accomplish this as a property owner? As we have written about in the past, the law doesn’t explicitly state that the dutyholder for a given property needs to arrange to have an asbestos survey carried out on it. In practice, however, it is often extremely difficult to ascertain the aforementioned information about the asbestos situation in a property, unless an asbestos survey is performed.

It may, then, be essentially mandatory for you as a dutyholder to have a professional asbestos survey conducted. If this is the case for you, our guide to choosing an asbestos surveyor may be of interest, including our advice on the importance of selecting a surveying company that has United Kingdom Accreditation Service (UKAS) accreditation.

Dutyholders should also be aware of the two different types of asbestos survey, and well-informed on the distinctions between them. In summary:

• An asbestos management survey is the type of asbestos survey that is designed to help with the management of ACMs during the normal occupation and use of the given building. It provides information that enables the dutyholder to put together an asbestos register and asbestos management plan.
• An asbestos refurbishment or demolition survey fulfils the legal requirement for all ACMs to be removed from a building – as far as reasonably practicable – prior to major refurbishment or demolition work taking place. It is a much more intrusive survey than the management survey, entailing destructive inspection.

Confusion can sometimes arise among property owners as to whether an asbestos survey – once performed – will only remain valid for a certain period of time and will therefore need to be “renewed” with a fresh survey at some stage. There is no single and simple answer to the question of whether an asbestos survey is time-limited in its validity, so you might be interested in consulting our in-depth article on the topic.

How can property owners create an effective asbestos management plan?

The creation and maintenance of an up-to-date asbestos management plan (AMP) is another key element of the “duty to manage” asbestos for property owners. The AMP’s purpose is to outline the procedures and arrangements to manage the risks that ACMs pose in the given building. This document can be handwritten or typed.

We have previously explained the steps of writing an effective asbestos management plan. Further detailed guidance on how to put together an AMP is provided on page 36 on the L143 ACOP publication.

You will need to ensure your own property’s AMP includes such vital information as the location and condition of the ACMs, as well as the management actions that will be taken for them. The AMP should also identify the person(s) responsible for managing the asbestos risk.

Not only must the dutyholder ensure an AMP is assembled, but they should also make sure the plan is implemented to manage the risks. This implementation process will need to include assigning responsibilities and setting review dates. As a minimum, the AMP – including records and drawings – should be reviewed every 12 months.

What must be included in an asbestos register, and how should it be maintained?

An asbestos register is a document setting out the results of an asbestos survey that has been carried out on a building. This document is crucial because the information it contains will help ensure the right steps are taken to protect the safety of building occupants and users.

Your property’s asbestos register, then, should include a comprehensive rundown of all the ACMs found in the building. Furthermore, it should contain details on the location(s), type(s), and condition of those ACMs.

A risk assessment will need to be included in the asbestos register as well, as this will help you identify and prioritise any ACMs for which remedial action is required.

It is part of a dutyholder’s legal obligations to not only make a record of the property’s ACMs, but also keep this record up to date. By arranging to have the ACMs at your site checked every six to 12 months, you will be well-placed to regularly update your asbestos register with any new information.

How should property owners communicate asbestos information to staff and contractors?

As the owner of a property who is also a dutyholder, you will be obliged to provide information about the location and condition of ACMs on your site to anyone who is likely to work on or disturb these materials.

You will need, for example, to tell the following people about your asbestos management plan:

• Site or building managers
• Employees
• Contractors
• Maintenance workers

You should make sure your AMP is available at the specific site to which the plan relates. Those with the responsibility are required to share the plan with anyone working in the premises.

All in all, clear communication to affected contractors and workers will be crucial prior to any maintenance, refurbishment, or demolition work being carried out at your building.

What are the penalties for non-compliance with the Control of Asbestos Regulations 2012?

If, as a dutyholder under CAR 2012, you do not have an asbestos management plan in place, you could be running the risk of being fined as much as £20,000, or imprisoned for up to six months. A serious violation of the regulations can lead to an unlimited fine and/or a prison sentence of up to two years.

The scope for prosecutions, fines, and damage to your reputation as an individual or business underscores the importance of ensuring you are well-informed about and compliant with the legal requirements under CAR 2012. This way, you will be able to minimise your risk of being subject to future enforcement actions.

Conclusion: proactive and constant compliance with the asbestos regulations is vital

As this article has hopefully made clear, adhering to the obligations you have as a property owner and dutyholder in accordance with CAR 2012, is not a one-time act. It is, instead, an ongoing habit and process, with your strategies for regular compliance needing to encompass regular reviews, audits, and updates to the asbestos management plan.

By engaging with accredited asbestos professionals such as those in our team at Oracle Solutions, you can help ensure you stay ahead of your legal obligations, and take every possible step to maintain compliance. For a fast and free quote for any of our services, please contact us.