Understanding the difference between regulations, ACOPs, and guidance notes in asbestos management

The importance of responsibly managing asbestos in the UK – across the many buildings and sites around the country where the notoriously hazardous mineral continues to be present – could barely be greater. This is a substance, after all, that – if swallowed or inhaled – can elevate the exposed individual’s risk of developing a potentially fatal asbestos-related disease later in life.

The naturally occurring substance, once widely used in vital UK industries such as shipbuilding and construction, was only finally banned in this country in late 1999. However, the material is believed to still be contained within more than 1.5 million UK buildings, and can therefore still pose a considerable risk to human health if it is not properly managed.

Asbestos was first commercially mined in the middle of the 19th century, and came to be especially extensively used in the UK from around the 1950s until the 1980s. Only in the later part of the 20th century did the serious health risks of breathing in or ingesting asbestos fibres become more broadly known among the public. This culminated in the introduction of ever-more stringent asbestos legislation in the UK, and eventually, the importation and use of the material was banned altogether.

This background should help give you an appreciation of why there is, today, such an extensive legislative and regulatory framework surrounding how asbestos is managed in the UK.

However, the sheer comprehensiveness of the various asbestos regulations, Approved Codes of Practice (ACOP), and guidance notes in the UK in the 2020s, might have also caused you no shortage of confusion. So, below, we have sought to clarify and explain the differences between these three vital elements when it comes to asbestos management.

What are the UK Asbestos Regulations?

The term “regulations” refers to legal requirements that are set out by a government (in this case, the UK Government). They have the force of law, so any individuals and organisations that need or intend to manage or otherwise come into contact with asbestos must comply with the UK’s asbestos regulations.

When articles like this one refer to the “UK asbestos regulations”, they tend to be primarily referring to the Control of Asbestos Regulations 2012, otherwise known as CAR 2012. These regulations are aimed at those who are in charge of given sites where asbestos may be present. They outline the legal duties and requirements related to the management, removal, and handling of asbestos-containing materials (ACMs) in non-domestic premises in the UK.

CAR 2012 came into force on 6th April 2012, representing an update and replacement of the previous 2006 law. A central element of this legislation is the “duty to manage” asbestos, with “dutyholders” under CAR 2012 being those who manage or are responsible for a given non-domestic building’s maintenance and repairs.

If you are a “dutyholder” for a given building in accordance with CAR 2012 – which might be the case if, for example, you own the particular site, or are responsible for it by virtue of a tenancy agreement or contract – you will be required to take certain actions to manage the risk of asbestos. Those actions will encompass such measures as:

• Taking appropriate steps to determine whether there are any ACMs on the premises – and if so, there will be a need to record the location, amount, and condition of those materials
• Presuming that materials contain asbestos unless there is strong evidence indicating this is not the case
• Producing and maintaining up-to-date records of the location and condition of all ACMs on the premises
• Assessing the risk that the identified materials present
• Putting together a plan that clearly outlines how the risks will be managed
• Taking the required steps to put this plan into action
• Reviewing and monitoring the plan and the arrangements to act on it, to help ensure they stay relevant and up to date
• Providing details about the location and condition of the ACMs to anyone who is liable to disturb or work on them.

As you can see, the requirements set out by CAR 2012 are extensive. They reflect the seriousness of the task of managing asbestos in a way that minimises the risk the substance presents to human health.

So, it should be no great surprise that the consequences of non-compliance with these regulations can also be very serious. If, for example, a dutyholder fails to put in place an asbestos management plan, they could be fined as much as £20,000, or imprisoned for as long as six months. A serious breach of the regulations, meanwhile, may lead to an unlimited fine, and/or a two-year prison sentence.

What are Approved Codes of Practice (ACOPs)?

Approved Codes of Practice, or ACOPs, are documents issued by the UK Health and Safety Executive (HSE) that provide practical guidance on how to comply with specific regulations. This can include in relation to the subject of asbestos management.

ACOPs are not laws themselves; however, they are a source of authoritative guidance on how to meet legal requirements. Crucially, ACOPs are also legally admissible in court, and can be used as evidence to demonstrate compliance with the law.

Although it is not mandatory for you to comply with an ACOP, if you choose to follow its guidance and can demonstrate that you have done so, it is likely that you will be deemed to have met the legal obligations outlined in the relevant regulations.

Ignoring the guidance in an ACOP may not be a breach of the law itself, but it can be challenging to defend your actions if you fail to follow its recommendations and an incident or legal issue arises.

To give an example of this, let’s take a closer look at the Approved Code of Practice and guidance document with the series code L143 (second edition), published in 2013, which relates to Managing and working with asbestos.

Section 143 of this HSE document states the following, on the subject of reviewing and updating the asbestos management plan under CAR 2012:

“As a minimum, the management plan, including records and drawings, should be reviewed every 12 months. It should also be reviewed if there is reason to believe that circumstances have changed (e.g. there is a change in use of building, work being undertaken, ACMs removed or repaired etc). The plan, including records and drawings, should then be updated accordingly.”

This passage in the ACOP document effectively means that re-inspections of the given site should be carried out every 12 months, in addition to the asbestos management plan (AMP) audit, in order to ensure records such as asbestos survey information are kept up to date.

Such a detail in the ACOP would be admissible in court. So, in the event of something going wrong such as an incident or legal issue, and you having failed to meet the aforementioned recommendation, it will be challenging to defend your actions in a court of law.

Failure to follow an ACOP’s guidance can be used against you in legal proceedings, even if it does not constitute a direct breach of the law, as it can be considered evidence of negligence.

What are the guidance notes about asbestos?

Finally, guidance notes are additional resources, provided by the HSE or other authoritative bodies, and which offer practical advice and recommendations on various aspects of health and safety, including asbestos management.

A major way in which guidance notes differ from regulations and ACOPs, is that they are not legally binding. Instead, they serve as sources of supplementary information and best practices, to help individuals and organisations understand and implement health and safety measures effectively.

Although it is not mandatory for anyone to follow guidance notes, doing so is generally considered good practice. Indeed, guidance notes can play an integral role in dutyholders’ efforts to improve safety and reduce risks at premises for which they are responsible, and where ACMs may be present.

What are the practical application and compliance considerations of ACOP and guidance notes?

If you wish to properly manage asbestos on a site for which you have legal responsibility, you will need to have a good understanding of all three elements we have addressed in this article – regulations, Approved Codes of Practice, and guidance notes – so that in turn, you can apply them in the most effective ways.

Familiarising yourself with these elements, including the information they provide on crucial measures such as regular asbestos surveys and AMP audits, will place you in a strong position to achieve legal compliance at every stage of your on-site asbestos management.

Naturally, achieving this will also have the consequence of helping to deliver the very greatest safety for anyone who comes in contact with your premises, whether on a day-to-day or occasional basis.

Conclusion: all three elements will play a vital role as you look to manage asbestos responsibly

Understanding and differentiating between regulations, ACOPs, and guidance notes will be vital to your efforts to manage asbestos on your site in ways that maximise safety, ensure legal compliance, and protect you and your organisation financially.

In summary, regulations are legally binding requirements that must be followed, and failure to do so can lead to detrimental legal consequences. By comparison, Approved Codes of Practice set out specific guidance on how to meet these legal requirements, and are highly recommended for compliance. Meanwhile, guidance notes are not legally enforceable, but nonetheless offer frequently very useful additional advice and information on best practices.

It is essential for any individual or organisation that manages or handles asbestos to be aware of, and adhere to, both the asbestos regulations and any relevant ACOPs. This will greatly help minimise risks, ensure safety, and demonstrate compliance with the law. Failure to follow an ACOP’s guidance, for example, can be used against you in legal proceedings, even if it is not a direct breach of the law, as it can be considered evidence of negligence.

As a licensed and accredited provider of asbestos services here at Oracle Solutions, we are well-placed to bring commercial clients throughout the UK the benefit of specialised and in-depth skill, knowhow, and experience. Please don’t hesitate to call our professionals today, or send us an email, to request your free and fast asbestos quote.