Contents
- Annex 1
- Annex 2Status: Fully Open
1 In summary, Regulation 4 of the Asbestos (Licensing) Regulations 1983 (as amended) states that:
2 Under powers delegated from the Executive, the Asbestos Licensing Unit (ALU) fulfils these functions on behalf of HSE.
3 Paragraphs 45-47 of the Guide to the Asbestos (Licensing) Regulations 1983 as amended (L11) provide examples of when it might be appropriate to revoke a licence. This document, which should be read in conjunction with the Guide, supercedes the guidance in L11
How this is applied in practice is described below.
4 The Health and Safety Executive's Enforcement
Policy Statement [PDF 89KB]
sets out the general principles and approach, which it expects the health
and safety enforcing authorities to follow. HSE's approach to enforcement
of asbestos legislation therefore follows these principles of enforcement
viz proportionality in applying the law, consistency of approach, targeting
of enforcement action and transparency. The Enforcement
Management Model (EMM) [PDF 133KB]
is a framework of use to all inspectors within the Health and Safety Executive.
It helps inspectors make enforcement decisions in line with HSC's Enforcement
Policy Statement. Revocation is a very serious matter and is considered
for the most significant breaches of standards.
5 The other means of securing compliance with licence standards at ALU's disposal, which are separate from any enforcement action inspectors might take as a result of poor standards seen on site, include:
Details of these can be found in the Asbestos Licence
Assessment Guide [460KB]
6 Each case will be considered on its own merits.
7 Revocation is appropriate:-
8 Breach of licence conditions or restrictions
8.1 Where there is clear evidence of repeated attempts to avoid notification in order to escape detection as to where or when the work is undertaken, or if other licence conditions or licence restrictions have been repeatedly breached, then revocation should be considered.
8.2 In such circumstances the inspector will have formed an opinion that a licence condition(s)/restriction(s) has been breached. The evidence gained to form his/her opinion should be sufficiently robust to withstand any appeal against the decision.
8.3 Failure to meet the administrative aspects of licence conditions on a single occasion will rarely be regarded as sufficient grounds, on its own, for revocation eg if HSE finds that a licence holder has failed on one occasion to notify work, and there are no other breaches, we would not consider revocation.
8.4 Similarly, if there is evidence that other licence conditions or licence restrictions have been breached on a single occasion, and there are no other breaches, we would be unlikely to consider revocation.
9 Evidence of continued poor performance involving enforcement action for asbestos related offences
9.1 This refers to situations where a pattern of poor performance has emerged over several site visits, demonstrating evidence of poor working conditions and control. This could be following two asbestos related convictions or could be a pattern of less serious offences short of prosecution eg enforcement notices served for failures to comply with decontamination procedures; decontamination unit not kept clean; employees not clean shaven; refresher training out of date; method of work changed but not recorded or notified, etc. or a combination of prosecutions and enforcement notices.
9.2 For revocation to be considered, the "less serious" incidents referred to above will normally have resulted in the issue of enforcement notices (ASB6 enforcement authority visit reports would not normally be sufficient on their own).
10 Following an extremely serious incident irrespective of whether or not there has been enforcement action
10.1 This refers to situations where there has been a significant breach(es) of asbestos related health and safety legislation and possibly breaches of licence conditions too (eg no notification; working outwith licence remit) resulting in unnecessary exposure to asbestos, contamination and spread of asbestos, failure of management arrangements, etc.
10.2 Examples include uncontrolled dry stripping; unjustified use of power tools; inadequate respiratory protective equipment (RPE) eg none worn, disposable masks used instead of full face power respirators; no face fit testing of RPE; no enclosure or badly maintained enclosure eg leaking, no airlocks etc; no decontamination facilities; inadequate plant and equipment; no training; deliberately failing to follow the method statement, etc.
11 When there is sufficient evidence to support a decision to proceed with more detailed enquiries, ALU, together with the Head Office Asbestos Licensing Principal Inspector (if not directly involved) and the local ALPI will liaise to decide whether the circumstances of the contravention should be explored. In doing so, they will take into account the performance of the licensee on the job in question and their track record. They will also take into account the factors considered when judging whether it was appropriate to grant the licence. (These factors are equally relevant in deciding whether the licence should be revoked). ALU should keep notes of the decision and any meetings/telephone conferences held to consider the matter.
12 If following consultation, it has been agreed to proceed, ALU will request that the local ALPI (ie the ALPI in whose area the work took place) should undertake the necessary fact-finding, conduct a formal interview with the licensee and submit a report to ALU within 8 weeks of the incident(s) or conviction. In exceptional circumstances it may not be possible to meet this deadline, in which case the ALPI should inform ALU.
13 The ALPI will write to the licensee,
providing them with sufficient notice and inviting them to attend the formal
interview. The letter will explain the purpose of the interview; why it
is maintained that revocation should be considered; how it will be conducted;
who will attend (with a legal representative - solicitor and/or counsel),
and, how it will be recorded, so that the licensee can clearly understand
the issues and the implications of any decision made and prepare for the
interview in advance. A standard letter for this purpose is attached at
Annex 1 [28kb] .
14 On receipt of the invitation to attend the formal interview, the licensee or their legal representative may respond that the issues for discussion might prejudice their defence in any criminal case and they may refuse to attend an interview on that basis. If this occurs, ALU may write to the licensee informing them that the revocation proceedings may be suspended and will resume at a later date.
15 In cases where there is no prosecution pending, and the licensee refuses to attend the interview, the ALPI should write again to the licensee, inviting them to make written comments within 14 days of receipt of the letter. The letter should explain that if the licensee does not respond, then the revocation process will continue regardless, but without the benefit of HSE being able to consider any comments/information the licensee might have provided.
16 Whilst the formal interview is not about investigating the alleged breaches of asbestos related legislation, in order to assess the licensee's ability to work safely in the future, it will be appropriate to address the alleged facts, which gave rise to the revocation proceedings. The same issues covered at the initial licence assessment will be re-explored to gauge whether the licence should be retained. The object of the interview is to give the licensee the opportunity to demonstrate:
It is envisaged that a Band 3 inspector (usually the investigating inspector) will attend the interview with the ALPI.
17 If a prosecution is pending, the licensee might not make relevant/pertinent information available, preferring to retain this as part of the company's defence strategy, and to avoid self-incrimination. Revocation is a civil - not a criminal - matter. As such, interviews under caution are not appropriate. However, it is conceivable that during a formal interview to discuss a revocation, the conversation could stray into areas relevant to an ongoing investigation/prosecution and if something is said in the interview that might suggest that a criminal offence has been committed, then a caution will be needed. So long as care is taken when deciding what is going to be asked, and it is made clear to the licensee that the discussion is about the possible revocation and not the prosecution, the interview need not be conducted under caution. However, the licensee needs to be clear that it is a formal interview, not an "off the record" meeting, but a formal opportunity for them to put forward representations supporting their case for non-revocation.
18 There must be a record of the interview, preferably recorded on tape in line with PACE principles (but with no reference to caution) and a copy of the tape will be provided to the licensee. In Scotland, a copy of a signed manuscript will be provided to the licensee at the end of the interview.
19 Following the meeting, the ALPI will arrange for a copy of the tape and a summary of the interview to be sent to ALU, as part of their report, within the overall 8 week timescale referred to in paragraph 12. In Scotland, a typed copy of the manuscript will be sent to ALU and the licensee, for information.
20 The report submitted by the ALPI to ALU should include:
*Some of this information may have to be provided by ALU.
21 On receipt of the ALPI's report, ALU will check there are prima facie grounds for revoking the licence and, following discussions with the HO ALPI (if not directly involved) will decide whether to proceed with revocation action.
[Disputes - in situations where the Head of ALU and the HO ALPI/local ALPI are not in agreement, the case will be referred to the Head of Health Unit for a decision on how to proceed].
22 If it has been decided to proceed, ALU will write to the licensee informing
them that a Licence Review Board will be convened for full consideration
of the circumstances and to make a joint decision on the action to be taken.
The letter will inform the licensee that they have 21 working days from
receipt of the letter to make written representations to the Board as to
why the licence should not be revoked, including any additional information
not presented earlier at the formal interview with the ALPI. A suggested
letter is at Annex 2 [27kb] .
Accompanying the letter to the licensee will be copies of all the information
that will be presented to Board members, including
23 The licensee will therefore have the opportunity to review the same paperwork that will be presented to Board members and submit their written representations to the Board before it meets.
24 A meeting of the Board will be convened, chaired by the Head of Health Unit (HU) (Band 1), and attended by Band 2s viz the Head of ALU, an independent ALPI and an independent Band 2, (ie someone unconnected with licensed asbestos work). A member of ALU staff will also attend to take notes.
25 The Head of Health Unit will act as chair. Wherever possible the Licence Review Board will reach its recommendation by consensus. In cases where there is disagreement in reaching a decision, the final decision will be made by the chair.
26 The Head of ALU's role will be to present the ALU position, taking the overall picture of the licensee's performance into account.
27 The role of the other Band 2 members (the independent ALPI and an independent Band 2) will be to challenge, where necessary, and ensure a consistent approach.
28 The purpose of the meeting is for the Board to reach a consensus view, based on the facts and to make a recommendation to the Head of Health Unit, who has the power to revoke. The Board should ensure that only relevant considerations are taken into account in coming to a decision and that the decision is proportionate. The meeting will consider:
29 There will be a note of the meeting, and its findings and the reasons for them will be recorded and subsequent action monitored by ALU. If the decision is made not to revoke, then the local and HO ALPIs and ALU will consider whether alternative licence action is appropriate.
30 If the Chair (Head of Health Unit) accepts the Board's recommendation that the licence is to be revoked, he/she will write to the licensee, by recorded delivery, at their registered office, within 5 working days of the meeting. The letter will explain the Head of Health Unit's decision, the reasons for it, what the licence holder should have done and failed to do, and will request the return of the licence with a reminder of the continuing legal responsibilities regarding record keeping. Details about the right of appeal to the Secretary of State, will be included in it. (Ideally, the text of the letter should be agreed with the Board prior to being sent).
31 The licensee has the right to appeal to the Secretary of State against the decision to revoke (reference Section 44, HSWA). If the licensee exercises this right, their licence would remain revoked unless or until the decision of the Board is overturned.
32 The licence application form (ASB1) requires companies to declare if any company directors or firm's partners have ever had a licence revoked whether trading under their present name or under a previous name. In this way, ALU can take this information into account when monitoring and assessing licence applications.
33 ALU will not normally consider a new licence application from an applicant who has previously had their licence revoked unless they can provide evidence that they have taken action to remedy their previous shortcomings and can demonstrate that they can now achieve and consistently maintain the required standards to work safely with asbestos. Although it is difficult to be prescriptive, typically this is unlikely to be achieved in less than a two year period. During this time, ALU would expect the relevant personnel to have worked in a suitable position with a separate licence holder and be able to show they have successfully undertaken an appropriate range and type of asbestos work, at regular intervals, thereby demonstrating their competence before applying for a new licence.
Asbestos Licensing Unit
August 2004