RICS Draft Guidance Note: Asbestos - legal requirements and best practice for property professionals and clients (4th edition)

RICS Asbestos 4th edition consultation draft

3 Regulations and guidance

The matrix below shows the applicability of various regulations and guidance covering asbestos to all RICS professional groups. Regulation 10 of The Control of Asbestos Regulations 2012 requires all surveyors to have asbestos awareness training and this should provide the more comprehensive knowledge expected of an RICS member.

Numbered regulations refer to The Control of Asbestos Regulations 2012.

asbestos-table1

Key:

Regulations: Control of Asbestos Regulations 2012

UK REACH: REACH (Registration, Evaluation, Authorisation & restriction of Chemicals) is a regulation,originally of the European Union, adopted to improve the protection of human health

Hazardous Waste Regs:

CDM _ Construction Design and Management Regulations 2015

CL:AIRE: car-soil document is industry guidance, with the involvement of HSE

Table 1: Applicability of asbestos regulations to RICS professional groups

3.1 The Control of Asbestos Regulations 2012

This section is a summary of the main points of The Control of Asbestos Regulations 2012. For further details, please refer to the HSE Approved Code of Practice and guidance Managing and working with asbestos (L143).

3.1.1 Regulation 4: Duty to manage asbestos in non-domestic premises

There is a specific requirement - a legal duty - to manage the risks from asbestos in non-domestic premises. This includes all industrial and commercial buildings, such as factories, warehouses, offices and shops. The duty also covers public buildings such as hospitals, schools, museums, libraries, leisure centres, churches and other religious buildings, in addition to road and rail vehicles, aircraft and offshore installations, as well as structures and installations (such as bridges) and street furniture (such as street lighting). The duty applies to the 'common parts' of multi-occupancy domestic premises, such as purpose-built flats or houses converted into flats. Even where the duty to manage under Regulation 4 does not apply, Sections 2 and 3 of the Health and Safety at Work etc. Act 1974 apply to anyone conducting business, such as landlords of domestic premises, in that they have a duty to ensure their undertaking does not present a risk to the health and safety of people.

This can be done by carrying out a survey to enable an asbestos register to be compiled, assessing the risks from any identified asbestos and then making sure the risks are managed by passing on asbestos information to anyone liable to disturb it. This is known as the duty to manage (see para. 4.2.3).

With regard to residential dwellings, landlords have a duty to fulfil the same obligations under the Defective Premises Act 1972 and Homes (Fitness for Human Habitation) Act 2018, and normally in respect of the private areas of domestic dwellings they will have duties under Section 3, duty of care, of the Health and Safety at Work etc. Act 1974.

Under Regulation 4, organisations that have to meet this obligation are called dutyholders, defined as being anyone who has contractual maintenance or repair responsibilities, or in the absence of a contract or tenancy, those that are in control of the premises. Clearly, if you have control over premises and the repairs and building work that go on in those premises, you have a legal duty to manage the risks from asbestos to ensure people are not being exposed. The HSE guidelines The duty to manage asbestos can be summarised as follows:

  • Take reasonable steps to find materials likely to contain asbestos.
  • Presume materials contain asbestos unless there is strong evidence to suppose they do not.
  • Assess the risk of anyone being exposed to asbestos from these materials.
  • Make a written record of the location and condition of ACMs and presumed ACMs, and keep it up to date (the management survey).
  • Repair or remove any material that contains or is presumed to contain asbestos, if necessary because of its location, condition or the likelihood of it being disturbed.
  • Prepare and put into effect an asbestos management plan (AMP) to manage exposure risk and ensure that:
    • information on the location and condition of ACMs is given to people who may disturb them during work activities
    • any material known or presumed to contain asbestos is kept in a good state of repair
    • the condition of known and presumed ACMs can be monitored and
    • the asbestos management plan and the arrangements made to put it in place can be reviewed and monitored.

A dutyholder cannot delegate their statutory duties to a managing agent. If a contract is in place that places all Regulation 4 duties within the contract, there may be a conflict between criminal law and contract law.

An asbestos register or survey does not constitute an AMP. The existence of a register or survey shows you are partially complying with the duty to manage, but only an AMP and its implementation constitute full compliance.

The suggested contents of an AMP are shown in appendix D.

The duty to manage will impact on RICS members in the following ways:

  • Own premises: their organisation itself is likely to be the dutyholder. This means they will need to manage any identified ACM in the buildings their staff occupy, which in turn means having an AMP and survey information in place.
  • Managing agent: if the surveyor is acting as a managing agent on behalf of the landlord they cannot, in law, take on the statutory duties as these still remain with the landlord, since the landlord is the dutyholder. The surveyor can commission surveys and management plans on behalf of the landlord, but ultimately it will always be the landlord's statutory duty to comply. However, a landlord may pursue the surveyor at law if the surveyor's actions or inactions contribute to the landlord's failure to comply. This may include failing to carry out a contractual duty or, outside of a contract, in the tort of negligence if the surveyor fails in a general (non-contractual) duty.
  • Third-party clients: if the surveyor has been engaged by a client to carry out refurbishment and building works, depending on the contractual terms, they will probably have a direct responsibility to gather sufficient asbestos information before work starts (see Regulation 5). This will include ensuring the client issues information on asbestos as part of the required pre-construction information under The Construction (Design and Management) Regulations 2015 ('the CDM Regulations').

The surveyor should inform all clients of this duty, including overseas clients, to ensure they are aware of their obligations.

If the landlord is absent, the managing agent may be considered to be in charge of the property and may acquire additional dutyholder responsibilities.

If the situation is not clear, the facts in each situation will ultimately be considered by a court should things go wrong. All parties are expected to work together to control the risk from asbestos. While a dutyholder cannot delegate their statutory duties to, for example, a managing agent, that same managing agent has other duties under several sections of the Health and Safety at Work etc. Act 1974 to act responsibly in controlling risk so far as reasonably practicable. Whoever is in effective physical control of premises and on the spot will carry a lot of the practical responsibility for achieving compliance, but resources to enable this have to be available from the ultimate owner.

3.1.2 Regulation 5: Identification of the presence of asbestos

Regulation 5 supplements Regulation 4 where the duty to manage does not apply. In such circumstances, it imposes a duty on the employer to identify the presence of asbestos and put controls in place before starting work.

Regardless of whether an asbestos register is present, or the building is residential (and therefore outside the scope of the duty to manage), there is a clear duty to identify where asbestos is present before any building work is carried out, including refurbishment, maintenance, demolition, repairs, installation work or any other work that may disturb the fabric of the building. This may simply involve a review of the AMP. If this is not comprehensive enough to cover the planned works, additional investigation will be required.

Anyone carrying out any type of building work, whatever its size and nature, has a legal duty to take measures to identify whether asbestos is present in the work area. In practical terms this usually means carrying out an intrusive survey of the work area, or at the very least undertaking laboratory analysis of building material samples suspected of containing asbestos.

Regulation 5 also obliges the contractor to investigate further if there is any doubt about the information the client has supplied to them, or if no information is supplied.

In most cases, a refurbishment and demolition survey will be required in order to comply with Regulation 5, even if a management survey has been carried out and an asbestos register exists.

RICS members who have been instructed by clients to oversee refurbishment, demolition and work that involves dismantling the building fabric may be revealing areas that are not listed on the asbestos register. In these instances, a refurbishment and demolition survey should be commissioned to inspect inside the building fabric. Because this survey needs to reflect the intended building work, the asbestos survey company should be given as much information about the planned work as possible. When the survey is carried out, the asbestos surveyor will only look at those areas affected by the planned work, and will not unnecessarily disturb or access areas that are out of scope. Doing this is more likely to produce a value for money quotation as the asbestos surveyor will not be allowing for unforeseen eventualities.

3.1.3 Regulation 6: Assessment of work which exposes employees to asbestos

This regulation obliges employers to assess the risk to employees prior to carrying out any work that could disturb asbestos and then take specific measures to control and monitor exposure. In the majority of cases, this will be companies undertaking the removal of asbestos, whether it is licensed or non-licensed work (see Regulation 8). However, this will also apply to RICS members carrying out due diligence, condition surveys, pre-works inspections and other such surveys where exposure might occur.

There are different requirements for risk assessments depending on whether the work is licensed or non-licensed, but as a minimum for any type of work the assessment should cover:

  • a description of the work, including the scale and duration
  • the type of asbestos being worked on and its condition, or, if not known, the most likely ACM to be encountered
  • the likely concentration of fibres in the air and whether this exceeds either the control limit or short-term exposure limit
  • what respiratory protective equipment (RPE) and personal protective equipment (PPE) is required, as well as procedures for personal decontamination
  • what control measures will be put in place and
  • what arrangements are in place to deal with asbestos waste and any emergency situations.

3.1.4 Regulation 7: Plans of work

Employers are obliged to prepare a plan of work or method statement prior to carrying out any work with asbestos.

This regulation applies to anyone who works on asbestos. As with Regulation 6, in the majority of cases this will be companies undertaking the removal of asbestos, whether it is licensed or non-licensed work (see Regulation 8).

This plan of work is usually produced in conjunction with the risk assessment (see Regulation 6) as it directly relates to the risk from actually working on asbestos.

The plan of work should be specific to each site and should be a practical, readable document that can be easily followed by operatives on site.

In terms of asbestos work, the method statement is usually referred to as the plan of work. As the plan of work incorporates a risk assessment, it is also a RAMS document (risk assessment and method statement). It also goes some way to satisfying the content of the construction phase plan required by the CDM Regulations.

RICS members who are commissioning or engaging in asbestos removal work should make sure they are given a copy of this document prior to work beginning. It should then be reviewed by someone who is familiar with the contents and requirements of such documents, who can make any necessary comments. If there is no-one in the organisation who has the knowledge and experience to do this, appropriate external assistance should be sought.

3.1.5 Regulation 8: Licensing of work with asbestos

Anyone carrying out work on high-risk materials has a legal duty to obtain a licence to do this work.

This regulation applies to asbestos removal contractors and it generally covers work on sprayed coating, insulation/lagging materials and AIB. Work on other asbestos products may be deemed to be licensable if the control limit is likely to be exceeded.

For RICS members who are involved with asbestos removal work on behalf of their clients, it is important to understand the difference between licensed and non-licensed work, and the consequences of misinterpreting the different categories of work. In order to avoid this, many organisations take the view that they will use a licensed contractor to carry out all work to remove or remediate asbestos, whether it is licensed or not, or appoint a consultant analyst to advise and assist on this.

The following table shows the three different work categories and the arrangements that need to be in place before carrying out each type of work.

Non-licensed work

Notifiable non-licensed work

Licensed work

Requirements:

  • risk assessment
  • control of exposure
  • trained workers
  • insurance

Requirements:

  • risk assessment
  • control of exposure
  • trained workers
  • insurance
  • notification before work starts
  • medical every 3 years
  • health records

Requirements:

  • risk assessment
  • control of exposure
  • trained workers
  • insurance
  • notification 14 days in advance
  • medical every 2 years
  • health records
  • licensing
  • emergency arrangements
  • designation of asbestos areas

Table 2: The three different work categories when working on asbestos

For instance, asbestos cement roof sheets that have been damaged as a result of a fire would be classed as notifiable non-licensed work, as would floor tiles that can only be removed by scraping and therefore unavoidably breaking them. Asbestos cement panels or composite sheets that can be removed whole and are in a good condition would be classed as non-licensed.

Other examples of non-licensed work, which does not need to be notified, include short, non-continuous maintenance work involving AIB, such as:

  • drilling holes for fittings
  • repairing very minor damage
  • lifting ceiling tiles for access/inspection, and
  • removing a single screw-fixed panel as part of a maintenance task.

Additional information regarding non-licensed work can be found in HSE Advice Note A0 - Introduction to Asbestos essentials.

Refer to appendix E for examples of licensed and non-licensed work.

3.1.6 Regulation 9: Notification of work with asbestos

It is the responsibility of the specialist contractor performing the work to notify the relevant authority, and there is a different notification period depending on whether the work is licensed or non-licensed.

When working on asbestos, unless the work is classed as non-licenced work, it is a legal requirement to notify the relevant enforcing authority (either the HSE or local authority) on a job-by-job basis.

The legal requirement for notification of licensed work is at least 14 days before the start date, using the online form. A plan of work (or method statement) and risk assessment have to be prepared at the time of the notification. The HSE does not approve notifications, but may use notifications to plan field visits.

Non-licensed work is work on lower-risk asbestos materials and products, as defined in Regulation 2 of The Control of Asbestos Regulations 2012. This work becomes notifiable non-licensed work if the asbestos is in a poor condition before work starts or it is likely to deteriorate during removal. Notification of this type of work can be made online at any time before the work starts.

3.1.7 Regulation 10: Information, instruction and training

Anyone liable to disturb the fabric of a building during repair, maintenance, refurbishment, demolition or other building work is required to receive the correct level of information, instruction and training in order to carry out the work safely and competently. This also applies to people who plan, supervise and manage this work, including RICS members who carry out building surveys.

Employers have a legal duty to give adequate information, instruction and training to ensure employees have the knowledge to be able to safeguard themselves, as this is an essential part of preventing exposure. Different levels of training can be given depending on how likely employees' work activity is to bring them into contact with asbestos.

RICS members should identify what level of training staff require by conducting a training needs analysis. A simple way of doing this is to divide employees into one of the following groups and allocate a level of training to each group. The level of training also depends on how much and what type of asbestos is in the building:

  • general building occupants: a one-off email briefing or staff bulletin
  • those involved in survey work: awareness training
  • those involved in building/maintenance work: awareness training
  • building and premises managers, as well as health and safety/compliance staff: dutyholder training.

Staff who conduct building surveys of any type are legally required to complete asbestos awareness training, so they have a greater understanding of the likelihood of asbestos being present in the buildings they enter and what the potential risks are.

3.1.8 Regulation 11: Prevention or reduction of exposure to asbestos

Employers have a legal duty to take steps to prevent exposure to asbestos and, at the very least, put in place measures and controls to reduce exposure to as low a level as is reasonably practicable.

Whenever possible, preventing exposure by completely avoiding any disturbance is the preferred option, for instance by routing cabling away from the ACM completely. This will not always be possible (e.g. during asbestos removal work), in which case the requirement is to reduce exposure to a minimum.

Parts of the wider property sector, for example smaller dutyholders, are often less familiar with asbestos policies and procedures in general and have a lower level of compliance. Consequently, in prosecutions for cases of asbestos being disturbed on site (for instance, during the refurbishment of schools or shops) it is fairly common to be able to prove this regulation was not complied with.

It is important for RICS members to understand that if asbestos is disturbed on site and there has been no survey or sampling undertaken beforehand, the HSE can more easily prove that no one took any action to prevent exposure because there was no attempt to identify whether asbestos was present or not (also breaching Regulation 5).

3.1.9 Regulation 14: Provision and cleaning of protective clothing

Protective clothing, as well as RPE, is legally required to be provided to anyone working on ACMs. Once any PPE has been issued it is legally required to be used, stored and maintained properly.

RICS members would not usually be issued with specialist PPE; however, Surveying safely, RICS guidance note, provides general guidance on PPE for typical surveying work. Specialist PPE is usually only necessary for asbestos surveyors and contractors (see 4.1.2 Duties to staff).

3.1.10 Regulation 15: Arrangements to deal with accidents, incidents and emergencies

Employers should have procedures describing what to do if there is an accidental, unplanned or uncontrolled release of asbestos.

This regulation imposes a duty on employers to have written procedures describing how they would keep people safe in the event of asbestos spreading, and how they would go about cleaning up the contamination.

In buildings where it is foreseeable that asbestos could be disturbed - premises with a significant number of ACMs on the register - the building owner should have emergency procedures in place to deal with such an outcome.

These emergency procedures can be incorporated into the asbestos management plan (see Regulation 4).

If the uncontrolled release of asbestos fibres is judged to have been significant, i.e. above the control limit, the incident should be reported to the HSE under The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR). It is recommended that specialist advice be sought before such a decision is made.

RICS members may sometimes be asked by their clients about retrospective exposure. There is currently no test or screening that can be carried out retrospectively to assess what level of exposure, if any, has occurred during an incident. Workers who are suspected of having been exposed to asbestos should also be given a copy of the incident report that is kept in their personnel file. The HSE recommends advising them to provide a copy of this to their GP for retention in their medical record.

3.1.11 Regulation 16: Duty to prevent or reduce the spread of asbestos

Anyone who has asbestos on their premises, or in items they are trading or restoring - which could be anything from gas masks to steam engines - or is in charge of building work has a legal duty to ensure asbestos is not spread.

If you have identified asbestos before work starts (complying with Regulation 5), you are significantly less likely to spread it (complying with Regulation 16) and will therefore not be exposing anyone (complying with Regulation 11).

As described in Regulations 4 and 5, the key to successful asbestos management is to control work on the fabric of the building so that accidental disturbance of known or unknown ACMs does not occur. All maintenance and building work should be designed and managed so that the presence of ACMs is identified before any work begins.

Before carrying out any work that may involve the disturbance of asbestos, or those parts of the building that may contain ACMs, it is essential to assess whether asbestos is present and, if this is believed likely, positively identify it by means of sampling or surveying. This information should then be used to either remove the asbestos before the planned building work or tell workers how to avoid disturbing it in situ.

Asbestos could also be spread if licensed or non-licensed work is carried out in such a way that fibres are not contained properly. This could be due to a poorly erected enclosure for licensed work that 'leaks' fibres, or non-licensed work where dust is being generated over and above what is expected.

3.1.12 Regulation 17: Cleanliness of premises or plant

This regulation mainly applies to asbestos removal activities. Licensed work has a clearly defined set of procedures for confirming fitness for reoccupation; this is known as the four-stage clearance procedure. Non-licensed work on lower-risk materials also needs to be adequately checked for cleanliness on completion, although there are not the same requirements for air testing and handover procedures.

Third-party support for asbestos removal work can be provided by asbestos consultancies. These are usually accredited laboratories and survey companies whose core business is to advise clients and dutyholders on how to comply with all aspects of asbestos regulations.

Their services may include:

  • air testing during asbestos removal work, plus other background, leak or reassurance testing, as well as personal sampling of operatives and other personnel
  • assisting with the management of asbestos removal, such as inspecting enclosures, witnessing smoke tests, attending progress meetings and designing works, and
  • clearance testing on completion.

The HSE recommends that clients appoint an independent UKAS-accredited laboratory directly rather than via a contractor.

Clearance testing is the asbestos equivalent of practical completion. This adds weight to the recommendation that the laboratory performing this test should be appointed independently (by the client or their agent) to ensure integrity and impartiality, and not subcontracted by the asbestos removal company or building contractor.

Licensed work

Licensed asbestos removal work is certified as being complete by means of a Certificate of Reoccupation, incorporating a four-stage clearance air test. Unlike other air tests, clearance tests are mandatory on all licensable works inside an enclosure - such as works involving AIB, insulation and sprayed coating - and are regarded as equivalent to the statutory inspections more commonly associated with electrical or gas systems.

Laboratories engaged to do clearance testing are required by law to be accredited by the UK Accreditation Service (UKAS) to meet the relevant criteria in ISO 17020 and ISO 17025.

The standard of cleanliness required is very high and may be difficult for the contractor to achieve in some circumstances, for example if there are traces of water due to leaking pipes in the work area or debris and dust caused by blown plaster or earth floors.

Non-licensed work/non-notifiable licensed work

Lower-risk non-licensed work (such as the removal of asbestos-containing floor tiles or asbestos cement products) does not usually require an air test to prove fitness for reoccupation. The most important step is to carry out a thorough visual examination to ensure no visible asbestos debris remains. This can be undertaken by the contractor who undertook the work, or a third party such as an asbestos analyst to provide independent verification.

However, it is common for clients who have commissioned such work to want additional verification of cleanliness. The sampling of airborne fibres will achieve this, so air testing can be carried out for reassurance. This reassurance air testing is not carried out to the same strict four-stage procedure described previously, but does consist of air testing in the area where the work has taken place.

3.1.13 Regulation 24: Storage, distribution and labelling of raw asbestos and asbestos waste

This regulation concerns arrangements regarding asbestos waste and provides best practice advice to help property professionals meet the legal core principles.

Asbestos waste is described as any material containing asbestos that is ready for disposal. In most cases, this is waste that has been generated by asbestos removal, so it becomes the responsibility of the asbestos contractor.

Any ACM that has been removed will need to be suitably bagged prior to disposal. There are different rules depending on whether the waste is defined as being fibrous or bonded. Small amounts of asbestos waste - such as a few bags - can be transported in a van as long as the company holds a Waste Carrier Licence. Larger amounts will need to be loaded into a sealed skip on site and removed by a similarly licensed carrier.

Skips are taken to landfill sites that are licensed to take hazardous waste (as defined by The Hazardous Waste (England and Wales) Regulations 2005). The transportation of waste is controlled by a consignment note system, which is passed down to each successive person in the chain, from the contractor who produced the waste, to the carrier, to the end receiver.

These waste requirements do not include the transport of asbestos samples, the movement of ACMs to another facility for cleaning (which might be performed for artefacts, for instance) or the movement of items for restoration, such as steam engines.

The issuing of a consignment note is a legal requirement under The Hazardous Waste (England and Wales) Regulations 2005. As part of project completion, RICS members should request a copy of it from the asbestos contractor so it can be kept with the other project documentation. The client has a duty of care to ensure the asbestos removed from their premises has been disposed of properly.

3.1.14 Regulation 27: Labelling of products containing asbestos

This regulation concerns the labelling of asbestos products and provides best practice advice to help property professionals meet the mandatory core principles. It applies to goods or articles for sale or use, and not the labelling of in situ ACMs.

Supplying asbestos-containing products is prohibited by law. However, an exemption may be granted in special circumstances.

Anyone proposing to supply or obtain an article that contains asbestos should first check whether the HSE or another body, such as the Office for Rail and Road, has issued generic certificates of exemption allowing the supply, providing the conditions set out in the exemption are met.

Buildings are not considered to be 'articles' and so can be sold while still containing asbestos.

The heritage industry and auctioneering sector may come across asbestos in such products as:

  • insulation to pipes on steam trains
  • rope material around other heating elements on steam trains
  • insulation and coatings in diesel trains
  • exhaust wrapping on classic cars
  • brake linings and clutches on historic vehicles
  • filters in gas masks
  • AIB backing for paintings
  • AIB mountings for miscellaneous artefacts