Health and Safety
Executive / Commission
Local authority circulars
To: Health and Safety Enforcing Authorities, Directors of Environmental Health/Chief Environmental Health Officers of London, Metropolitan, District and Unitary Authorities and Chief Executives of County Councils.
For the attention of: Environmental Services/Trading Standards/Fire Authorities/Other health and safety enforcing officers.
This circular gives advice to local authority enforcement officers
This Local Authority Circular (LAC) informs LA health and safety enforcement officers on the application of the Duty to Manage Asbestos in non-domestic premises (Regulation 4 of the Control of Asbestos Regulations 2006). This LAC should be read in conjunction with the Asbestos Inspection pack 2007/8 which is currently under production and which will be available in time for the start of 2007/8 workyear.
1. Asbestos is a naturally occurring fibrous mineral and which has been used for about 150 years on a commercial basis. It is versatile, plentiful and was ideal as a fireproofing and insulation material. Serious, often fatal diseases, can be caused when asbestos fibres are released from materials, become airborne, and are inhaled.
2. Asbestos was used extensively as a building material in Great Britain from the 1950s through to the mid-1980s (however, many older properties will have had modification work done in this period and may have had asbestos containing materials installed). It is estimated that more than 500,000 non-domestic premises, including schools, still contain some form of asbestos.
3. In 1995 research indicated that at least 25% of those people dying from asbestos related diseases have worked in construction and building operations. The building maintenance and repair sector now constitutes the group at greatest risk. A wide range of these workers are potentially at risk from asbestos fibres including electricians, plumbers, carpenters, joiners and builders. Other people in buildings could also be at risk from asbestos, either when the asbestos is disturbed, or in some cases by its generally poor condition.
4. Whilst employers have an obligation to ensure the health and safety of their own workers, this is not always easy as they are often completely unaware that the material they are working on contains asbestos. It is of course not possible to know with any certainty whether material contains asbestos unless it is analysed, however workers and duty holder can adopt a precautionary approach, assuming that the material they are working on contains asbestos unless it obviously does not i.e. it’s solid wood or brick.
5. Asbestos is the biggest occupational health killer, responsible for 4,000 deaths each year. Although these deaths are from past exposures (when asbestos was widely used and not regulated), it is vital that we protect workers now to prevent them dying from asbestos related cancer in the future (asbestos diseases have, on average, a latency period of between 15 and 40 years).
6. Duty to Manage asbestos (DTM) issues should be raised as part of your normal inspection where a DTM duty holder is clearly identifiable and on site. This topic is suitable for exploration at the majority of visits and visiting staff are actively encouraged to raise the DTM at all suitable visits. When visiting duty holders, visiting officers should pro-actively explore with duty holders their compliance with Regulation 4 of the Control of Asbestos Regulations 2006, more commonly referred to as ‘duty to manage’ or DTM.
7. Visiting officers are not required to identify whether asbestos is present themselves but to assess and, where necessary, enforce the duty holders’ compliance with DTM which is primarily a management regulation. In particular, visiting officers should check that the location and condition of asbestos containing materials (ACMs) has been established, if there is an asbestos management plan in place, and whether that plan is being implemented.
8. Visiting Officers are requested to follow up in all cases of inadequate compliance and consider whether enforcement action in the form of notices or prosecution is appropriate. Any decision on enforcement action should have due regard to the HSC’s Enforcement Policy Statement and the Enforcement Management Model.
N.B. This intervention can be combined with other HSE/LA programme work such as Falls From Height, Work Place Transport, etc. where appropriate.
9. If the Duty Holder is not on site (or there is no-one available with sufficient knowledge) information should be left on site for them (i.e. Free Leaflet INDG 223 "A short guide to managing asbestos in premises" and a copy of the DTM compliance checklist “Managing risk from asbestos: a basic guide to dutyholders’ legal responsibilities”) or contact details should be sought and contact made in another way, i.e. phone.
10. Visiting Officers will find useful supporting information on HSE's asbestos webpages and specific guidance material and appropriate leaflets on the site at www.hse.gov.uk/asbestos/information.htm.
11. HSE’s Construction Division are carrying out direct interventions with the building and maintenance repair sector, while HSE’s Field Operations Directorate (FOD) and Hazardous Installations Directorate (HID) staff are being asked to raise awareness and enforce across other sectors, specifically targeting the owners and occupiers of non-domestic premises under DTM.
12. These direct interventions will be underpinned by a publicity campaign later in the year (Q4 2007/08) similar to that, which was run in 2006.
13. A new Approved Code of Practice (ACoP L127 (second edition)) has been produced to support the new regulations and all other guidance will be reviewed and updated on a rolling programme over the coming months.
14. Local Authorities are asked to explore compliance at approximately 20,000 interventions (inspections) within the year, in reality this approximates to 1 intervention per LA per week.
15. Visiting Officers should use their professional discretion when deciding upon enforcement action, having due regard to the Enforcement Management Model (EMM) and HSC/E Enforcement Policy (guidance is contained in OC 265/50 V2.(This OC is currently under revision to take account of the new regulations but the guidance on Regulation 4 is still appropriate).
16. Where the duty holders elect for the ‘presumptive approach’ to asbestos management then arrangements should be in place to make sure that no one does any work without being informed that the materials may contain asbestos. The presence of ACMs should be confirmed by sampling. If confirmed it must then be decided if a licensed contractor is required for the work or it can be undertaken safely if the precautions in the appropriate guidance are followed. In addition, all presumed asbestos material is required to be maintained in good order.
17. The dutyholder should also ensure that occupiers of the building have been made aware of the arrangements made to manage asbestos. Appropriate asbestos awareness training should be provided for persons who are liable to disturb asbestos while carrying out their normal everyday work, i.e. general maintenance staff, or persons who may influence how the work is carried out. Visiting officers should also be aware, including where the dutyholders elect for the presumptive approach, or have in-house maintenance teams of the need to ensure that the appropriate level of asbestos awareness training has been received. The Regulations and ACoP lay down clear specific training requirements.
18. This phase of the programme work should be completed by 31 March 2008.
19. This LAC should be read in conjuction with the Asbestos Inspection Pack 2007/8 (in preparation but available from start of 07/08 workyear). DTM issues are fundamentally about management and control of contractor arrangements. At all visits where DTM is raised, visiting officers should leave the duty holder with a copy of the Free Leaflet INDG223 "A short guide to managing asbestos in premises" and a copy of the DTM compliance checklist “Managing risk from asbestos: a basic guide to dutyholders’ legal responsibilities”).
20. When planning and implementing work within the Fit3 programme it is essential to feedback details of activities and outcomes. This is to allow monitoring of progress towards the DRP objectives and where necessary to refocus work activities and to consider the adequacy of current support. Feedback also provides invaluable information for the Health and Safety Commission/HSE & LA Enforcement Liaison Committee/Local Authority Unit when responding to Ministers and the Local Better Regulation Office (LBRO) on the achievements of the LA/HSE partnership in delivering the DRP and the Fit3 programme in general.
21. Please use one or more of the following ways to record your activities and achievements both quantitatively and qualitatively:
22. Asbestos only poses a risk when the fibres become airborne and are inhaled. During these visits you should not be exposed to asbestos fibres. The only circumstances were you may be at risk is if there are maintenance activities going on in the premises at the time of you visit. It is the responsibility of the LA to ensure suitable measures are in place for visiting staff to protect against inadvertent exposure. LA Officers are referred to OC 265/48 which provides guidance for visiting officers when responding to enquiries.
23. Where the information suggests that there may be disturbed ACMs the visiting officers should exercise extreme caution and not put themselves at risk. Visiting officers should follow the guidelines contained in their own relevant H&S guidance.
24. Regulations 11 (control) and 16 (prevention of spread of asbestos) are key to dealing with exposure that is encountered on site. Such conditions may arise if asbestos present in the building is in poor condition. If you suspect material (e.g. lagging and insulation) is asbestos and is in poor condition do not enter any area where there is a risk of exposure to asbestos fibres..
25. Action to deal with any immediate risks should be taken in line with the guidance given in OC 265/50 V2. Regulation 4 in isolation cannot deal with immediate risks from ACMs.
Questions relating to this LAC should be directed to:
Dr. Dave Dillon,If you have questions relating to Asbestos Licensing this can be referred in the first instance to the Asbestos Licensing Unit (ALU), Tel No: 0131-247-2136. Other questions may be refered to ALU.