RICS Draft Guidance Note: Asbestos - legal requirements and best practice for property professionals and clients (4th edition)

RICS Asbestos 4th edition consultation draft

3.2 Enforcement action

If the regulations are breached, different regulatory bodies can take different types of enforcement action.

Health and safety on construction sites, which asbestos-related work falls under, is regulated in the UK by the HSE and its field inspectors, and supported by local authority inspectors. The purpose of enforcement is to:

  • ensure dutyholders take action to immediately deal with serious risks
  • ensure dutyholders comply with the law
  • promote and achieve sustained compliance, and
  • ensure dutyholders who breach health and safety requirements, and directors and managers who fail in their responsibilities, are held to account.

The HSE's emphasis is on prevention but, where appropriate, it will enforce the law if it is being deliberately flouted.

The duty to manage regulation also applies to landlords for offices, shops, residential lettings, buy-to-let property, etc. Environmental Health Officers will investigate breaches and refer them to the HSE as appropriate.

Enforcement options include:

  • providing information and advice face to face or in writing
  • serving notices on dutyholders
  • withdrawing licences
  • varying licences, conditions or exemptions
  • issuing simple cautions and
  • prosecution.

A prohibition notice can be served when an inspector believes there is a risk of serious personal injury associated with a particular work activity or process or, if a serious deficiency in measures is identified, to prevent or mitigate the effects of major hazards. There does not need to be a breach of the law. Such a notice can take immediate effect or be deferred for safety reasons.

An improvement notice can be served when an inspector believes there is a breach of the law that needs to be remedied within a certain period of time. Failure to comply with either type of notice is a criminal offence and can result in prosecution.

A UK inspector who finds a suspected breach of the law may apply the Fee for Intervention scheme. This is a mechanism through which the HSE can recover the costs for carrying out its regulatory functions from those found to be in material breach of health and safety law.

In UK law, prosecutions for a breach of the regulations are regarded as a criminal rather than a civil offence.