What’s the difference between Regulation 4 and Regulation 5 of the Control of Asbestos Regulations 2012?

While it has been illegal to import and use asbestos in the UK since 1999, the substance is sadly not a merely “historical” issue. It has been estimated that as many as 1.5 million buildings across the UK might still contain this carcinogenic mineral, dating back to when it was extensively used in the construction sector. Furthermore, even to this day, around 5,000 deaths in the UK each year can be attributed to past instances of exposure to asbestos.

So, while asbestos is no longer used in UK industry – as it once was for the manufacture of such products as asbestos insulating board (AIB), asbestos cement roof tiles, and textured decorative coatings – it still needs to be managed safely in the places where it remains present.

This helps to explain the existence of the Control of Asbestos Regulations 2012 (CAR 2012). This is the overarching asbestos legislation in Great Britain today, putting in place stringent requirements to help ensure the safe management of asbestos risks in the workplace and other environments.

Who do these regulations affect?

Employers, employees, and those who manage the maintenance of non-domestic premises all need to be aware of CAR 2012, and are expected to comply with its provisions. In practice, then, there are various primary stakeholders in CAR 2012, encompassing such individuals as contractors, landlords, and commercial building managers.

However, there can sometimes be confusion as to which parts of this legislation affect certain individuals. In this article, we will seek to clear up any such uncertainty, including with regard to the distinctions between Regulation 4 and Regulation 5.

As a quick summary:

• Regulation 4 covers the duty to manage asbestos in non-domestic premises
• Regulation 5 covers the identification of the presence of asbestos.

Regulation 5: what is the duty to identify the presence of asbestos?

Why is Regulation 5 important for contractors?

CAR 2012, Regulation 5 requires employers to identify the presence of asbestos, as well as the substance’s type and condition, prior to the commencement of any building, maintenance, demolition, or other work liable to disturb the asbestos.

This regulation is highly relevant to contractors, given that many such professionals don’t necessarily understand that they have a duty under this part of CAR 2012 to identify the presence of asbestos. They may mistakenly believe it is, instead, only the dutyholder’s responsibility to do this.

It is indeed true that under Regulation 4, a dutyholder for a given non-domestic premises is obliged to take reasonable steps to determine whether asbestos-containing materials (ACMs) are present on the site. We will address this in greater detail below.

However, when it comes to the identification of asbestos, the contractor has an equal responsibility, and cannot simply rely on the dutyholder doing what they are required to do under the regulations before work begins.

What does Regulation 5 require?

As we referenced above, Regulation 5 stipulates that employers must identify the presence of asbestos, along with its type and condition, ahead of any work (such as a building, maintenance, or demolition operation) that could cause disturbance to asbestos.

To comply with this requirement, the employer should assess relevant information, such as that contained in construction plans or provided by the aforementioned dutyholders. Asbestos surveys and registers, for example, will contain valuable details about the asbestos situation at the premises.

However, it might become apparent that no such records are available for the particular property, or the contractor might have reason to doubt the accuracy and/or relevance of any such documents they are able to access.

In this situation, it may be necessary for the contractor themselves to arrange an asbestos survey, complete with analysis of representative samples, in order to determine the presence, type, and condition of any asbestos in the given part of the premises.

Alternatively, the contractor should assume that the part of the building where disturbance will occur contains the most hazardous forms of asbestos – namely crocidolite (blue) or amosite (brown) asbestos.

As a consequence of this assumption, the contractor will be expected to apply the appropriate control measures that the Regulations require. This should include ensuring that any work requiring a licence from the UK Health and Safety Executive (HSE) is carried out by a professional who holds such a licence.

How should risk assessment be conducted under Regulation 5?

Although Regulation 5 itself does not explicitly address the risk assessment process, the subsequent Regulation 6 does. This part of CAR 2012 sets out that employers must undertake a risk assessment to identify the risks of exposure to asbestos.

Regulation 6 outlines the general requirements for risk assessments, including ensuring that whoever carries out the risk assessment is competent to do so. To be suitable and sufficient, the risk assessment will need to include a description of the work being undertaken and the anticipated scale and duration.

Further information on the requirements for risk assessments in accordance with Regulation 6 can be found in the Approved Code of Practice (ACOP) and guidance document on Managing and working with asbestos, available from the HSE under the L143 series code.

Who is affected by Regulation 5?

Employers who are planning or conducting work involving potential asbestos exposure will inevitably need to pay close attention to Regulation 5 of CAR 2012, and to make sure they adhere to its provisions.

This part of the regulations is also relevant to workers who would be at direct risk of exposure, such as construction workers, demolition teams, and maintenance staff.

Regulation 4: what is the duty to manage asbestos in non-domestic premises?

Who holds the duty to manage asbestos under Regulation 4?

Regulation 4 is a somewhat longer section of CAR 2012 than Regulation 5, covering the duty to manage asbestos in non-domestic premises.

If an individual is classed as a “dutyholder” for a given non-domestic premises, this regulation obliges them to identify the location and condition of asbestos at the site. Furthermore, they will need to manage the risk to prevent harm to anyone who works on the building, or to occupants of the building.

The dutyholder for a particular property will be the person or organisation with the main responsibility for maintaining or repairing the given non-domestic premises, or the common parts of domestic premises.

It may be the owner of the building who is the dutyholder, although this won’t be true in every single case. For example, there may be an explicit agreement such as a tenancy agreement or contract, under which the dutyholder is the occupier or the landlord, sub-lessor, or managing agent. There may also be some circumstances in which the duty to manage asbestos is shared between multiple parties.

How to identify and assess asbestos under Regulation 4

Regulation 4 necessitates that dutyholders ensure reasonable steps are taken to find materials at the given premises that are likely to contain asbestos, and to check the condition of these materials. The dutyholder will need to make sure a written record is made of the location and condition of confirmed asbestos and/or presumed ACMs. Furthermore, they are obliged to ensure the risk of anyone being exposed to these materials is assessed.

It is typically a professional asbestos survey that is used to carry out a thorough inspection of the premises under Regulation 4. This survey should be comprehensive and systematic, in addition to being the appropriate type of survey for the dutyholder’s current occupational requirements (there are two types; the management survey and the refurbishment or demolition survey).

Assessment of the condition of on-site ACMs should also be undertaken, together with an assessment of the potential risk from such materials. These assessments will need to encompass such aspects as the condition of the material surface, whether there is asbestos dust or debris from damage near the material, the amount of the ACM that is present, and whether it is in a location where disturbance would be likely.

What should a management plan include under Regulation 4?

Another key element of the “duty to manage” asbestos under Regulation 4, is the need to create an asbestos management plan, and to keep this plan up to date. This management plan will need to be written, and it can be in either an electronic or paper form. The purpose of such a plan is to set out how the risks identified from asbestos on the site will be managed.

In accordance with this, the asbestos management plan for a particular building will need to identify the person(s) responsible for managing the asbestos risk. It will also need to set out plans for any necessary work identified from the risk assessment (for example, to repair, protect, or remove ACMs), as well as the schedule for monitoring the ACMs’ condition.

Further details on the necessary contents of an asbestos management plan can be found in the aforementioned L143 publication. Our experts at Oracle Solutions have also previously written about how to write an asbestos management plan.

Who is affected by Regulation 4?

Regulation 4 of CAR 2012 impacts on dutyholders who are responsible for non-domestic premises, as well as some common areas of domestic premises, such as the foyers, lifts, and stairs in blocks of flats. Workers and contractors who might conceivably come into contact with ACMs are also affected by this part of the legislation.

Summary: both regulations play critical roles in asbestos management

As we have sought to make clear in this article, Regulations 4 and 5 of CAR 2012 have complementary, but important roles in helping to ensure dutyholders, employers, contractors and other stakeholders adhere to safe and legal practices in the management of ACMs.

By taking steps to identify and manage asbestos safely, which may include collaboration with other parties, you can help ensure you are playing your own critical part in addressing and minimising asbestos risks.

To learn more about our own accredited and licensed asbestos services here at Oracle Solutions, and to receive a free and fast quotation, please reach out to our well-trained and knowledgeable specialists today.