The Second Post Implementation Review of the Control of Asbestos Regulations 2012 (What You Need to Know)

Since they came into force on 6th April 2012, the Control of Asbestos Regulations – or CAR 2012 – have played a crucial role in helping to ensure the responsible management of asbestos on premises where the dangerous substance may be present.

The UK Government introduced CAR 2012 as an update to previous national asbestos regulations, to take account of the European Commission’s view that the UK had not fully implemented the EU directive on asbestos exposure (Directive 2009/148/EC).

Fast-forward to December 2022, and the Health and Safety Executive (HSE)’s second Post Implementation Review (PIR) of CAR 2012 was finally published. But what does the layperson need to know about this landmark report?

What was the review, and why was it needed?

The PIR report was originally set to be published by 6th April 2022, in order to comply with statutory requirements. However, HSE ultimately delayed completion of the report so that it could consider the outcomes from the Work and Pensions Committee (WPC)’s inquiry into how HSE manages asbestos that is still present in its buildings.

The purpose of the PIR is to assess:

• The extent to which CAR 2012 has achieved its objectives
• Whether the objectives are still appropriate, and
• If so, the extent to which those same objectives would be achievable with a system that puts in place less regulation.

The research that supported the PIR included evidence from a stakeholder survey, as well as cost-benefit analysis and epidemiological data. The online stakeholder survey was carried out from 23rd May to 11th June 2021, and attracted 1,850 responses in all.

What were the policy’s objectives?

The aforementioned EU Directive 2009/148/EC – which helped give rise to CAR 2012 – codified and replaced two Directives related to the protection of workers who could potentially be exposed to asbestos in the workplace.

Those two previous Directives were 83/477/EEC – otherwise known as the ‘Asbestos Worker Protection Directive’, or AWPD – and Directive 2003/18/EC, which amended 83/477/EEC. The amending Directive’s main aim was to update the required protective measures for workers who were considered to be at greatest risk of exposure to asbestos fibres, such as building maintenance workers.

CAR 2012, meanwhile, revoked and re-enacted the Control of Asbestos Regulations 2006 (CAR 2006). The 2012 regulations fully transposed Article 3 of Directive 2009/148/EC, and put in place a new category of ‘notifiable’ work with asbestos.

Other than some types of non-licensed work with asbestos now being subject to additional requirements in relation to notification of work, medical surveillance and record keeping, there was ultimately no change in the requirements from CAR 2006 to CAR 2012.

This meant that CAR 2012 continued to set out a largely familiar framework for the prevention of exposure to asbestos from work activities or minimising exposure to the greatest extent reasonably practicable.

The core requirements of CAR 2012, then, include:

• Assessing the risk that asbestos poses
• Implementing measures to prevent exposure and prevent asbestos from spreading
• Providing appropriate work equipment, and
• Providing workers with information, instruction, and training.

Another key feature of CAR 2012 is the duty that it sets out for the owners and managers of non-domestic premises to manage asbestos.

This duty encompasses such tasks as identifying and recording the location and condition of asbestos in buildings that the dutyholders own or manage. It also includes assessing the risk that the lethal material poses, and putting in place a plan to manage the risks asbestos poses in the given building.

To what extent have the policy objectives been achieved?

CAR 2012 fully implemented the EU Directive’s requirements, and continues to outline a framework for preventing those engaged in work activities from being exposed to asbestos – or at least lowering exposure as far as is reasonably practicable.

The responses to the online survey confirmed that CAR 2012 achieves this, and that the objectives are still valid. Regulatory intervention continues to be the most effective way to control asbestos exposure risks.

Survey respondents were asked to indicate the extent to which they agreed or disagreed with the statement “CAR 2012 sets out a framework for preventing exposure to asbestos from work activity or reducing exposure as far as is reasonably practicable.” 36.6% of the 1,842 respondents to this question expressed strong agreement, and 53.7% showed agreement. This equated to a combined total of 90.3% of respondents agreeing with the statement.

Furthermore, 71.1% of respondents believed that the CAR 2012 regulations were effective in protecting workers from asbestos risks, and that its objectives were not achievable with a system entailing less regulation.

What objectives still remain?

It emerged from both the PIR and the WPC inquiry evidence that greater clarity may be needed around work categories within the regulations. In response, the HSE has said that it will now consider how this could be developed further with stakeholders.

The regulator said that a full impact assessment and consultation would be undertaken ahead of any changes to the regulations. It added that making the regulations and guidance simpler could help to reduce burdens on business.

Is intervention by regulation still required?

Dutyholders responding to the survey broadly agreed that regulation was still needed in order to control such risks, as well as that CAR 2012 was effective in ensuring safety.

The responses to the survey showed broad support for the regulations as they presently stand. Some 1,078 respondents did not believe that the aims and objectives of the regulations could be achieved with a system that imposed a lower level of regulation.

An additional 226 respondents were unsure about this question, while only 213 of the survey participants believed the regulations’ aims and objectives could be achieved with a system that imposed less regulation. Even among these 213 respondents, there wasn’t any consensus on what form such a system should take.

The cost-benefit analysis backed up this sentiment, concluding that CAR 2012 has a net present value to society of £16.3 billion, and that there continues to be a strong case for maintaining them.  The HSE said this finding “allows us to conclude that the benefits of CAR 2012 outweigh the costs and will continue to do so for the foreseeable future, so long as exposures continue to be effectively controlled.”

In its own conclusions, the HSE considered that intervention by regulation was still required and continued to be the most effective way to control the risks of exposure to asbestos.

In conclusion, did the HSE regard it as necessary to amend the provisions of the CAR 2012?

Overall, on the basis of the collective research carried out in support of the PIR, the conclusions of the HSE were that:

• CAR 2012 is achieving its intended objectives, and those objectives continue to be valid
• Intervention by regulation is still needed, and continues to be the most effective way to control the risks of exposure to asbestos
• It is not necessary at this time to amend the provisions of CAR 2012.

The HSE said that while it didn’t consider a “substantive revision” of the regulations to be necessary at this time, it would look further at the regulatory requirements in relation to notifiable and non-notifiable work.

The regulator continued: “Both the PIR and the inquiry evidence suggest that the requirements would benefit from more clarity in this area and HSE will now consider how this could be developed further with stakeholders. Any change to the regulations would be subject to a full impact assessment and consultation.”

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