Author unit/section:

HSE disease reduction programme

Target audience:

All HSE and LA visiting staff

Summary

This SIM informs EHOs and Inspectors on the application of the Duty to Manage Asbestos in non-domestic premises (regulation 4 of the Control of Asbestos Regulations 2006).  This SIM should be read in conjunction with the Asbestos inspection pack 2007/8 [166 KB].

Aim

1  To ensure compliance with DTM and to take appropriate and proportionate enforcement action in accordance with the HSE Enforcement Policy Statement and Enforcement Management Model.

Background

2  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.

3  It is estimated that more than 500,000 non-domestic premises, including schools, shops, offices, factories, etc. still contain some form of asbestos.

4  A recent inspection initiative in Suffolk carried out jointly by HSE and the LA revealed that between a quarter and a third of premises had some form of asbestos management in place. Similarly, a recent campaign in Essex indication compliance with Regulation 4 in low percentage terms. 

5  Many occupiers are unaware of the presence of asbestos in their building. It is not possible to know with absolute certainty whether material contains asbestos unless it is analysed. However, workers and dutyholders can adopt a presumptive approach, assuming that the material they are working on contains asbestos unless it obviously does not, i.e. it is solid wood or brick.

Action required

6  When visiting duty holders as part of other inspections, visiting staff should pro-actively explore compliance with Regulation 4 of the Control of Asbestos Regulations 2006, more commonly referred to as ‘the duty to manage’ or DTM. This work can easily be combined with other programme work such as falls from height, Work Place Transport, Noise, etc. The intervention is not centred on a specific sector or activity but is premises based.

7  Visiting staff are not required to identify whether asbestos is present themselves but to assess the dutyholders compliance with DTM, which is primarily a management regulation. In particular, staff should check that the location and condition of asbestos containing materials (ACMs) has been established; that there is an asbestos management plan in place; and that the plan is being implemented.  

Timing

8  This work is to take place throughout 2009/10 and during this time, partnership teams may wish to explore opportunities for joint initiatives between HSE and LA staff.

Asbestos campaign

9  These direct interventions follow-on from the national publicity campaign aimed at tradesmen, which ran in October and November 2008. They will complement other potential activity proposed for 2009/10, which will focus on raising awareness of DTM amongst dutyholders.

 HSE recently commissioned the Institute of Employment Studies to evaluate the level of compliance amongst dutyholders. The study involved a telephone survey of 1000 dutyholders ranging from small businesses, local authorities and housing associations, through to large companies. This was followed up by individual visits to a small number of dutyholders.

Initial findings from the study show that the majority of small companies continue to be unaware of their duty under the Regulations, or to have completed an asbestos survey of their premises. The larger the organisation, the greater the level of compliance found. The full findings of the study will be published in the spring of 2009.

HSE is developing a web-based tool to guide dutyholders, particularly SME’s, through the process of managing asbestos in their premises. This is expected to be available later in the year. For further information, contact Lydia Harrison – 0151 951 4624.

Enforcement

10  Staff should use their professional judgement when deciding upon enforcement action having due regard to the EMM and HSE Enforcement Policy (guidance is contained in OC 265/50).

11  In HSE, Band 2s should ensure that local liaison arrangements exist to facilitate information exchange with colleagues in Construction Division, so that any ASB5 waiver requests, RIDDOR DOs or complaints received with information suggesting that tracking back is appropriate to identify possible management failures, can be followed up quickly. ASB5 14 day notice waiver applications can be indicative of poor management arrangements.

12  Where the dutyholders 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.

13  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 for persons who may influence how the work is carried out. Visiting staff 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 learning requirements.

Completion dates

14  This phase programme work should be completed by 31 March 2010, notwithstanding any enforcement action that may go beyond this date.

Work recording

15  In HSE, COIN recording details will be notified by FOD.  LAs should use their normal reporting arrangements.

Training and guidance

16  A topic inspection pack and further supporting material is available on the intranet (see below) and for LAs on Fit3 street.

Health and safety

17  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, refurbishment or other construction related work going on in the premises at the time of your visit.  Visiting staff should familiarise themselves with their own health and safety procedures in relation to asbestos.  In HSE, this is available on the intranet under ‘Your health and safety’.

18  Where the information suggests that there may be disturbed ACMs then visiting staff should exercise extreme caution and not put themselves at risk. Again, visiting staff should follow their guidelines, in HSE these are contained in the relevant H and S policy supplement.

Matters of evident concern

19  Regulations 11 (Control) and 16 (prevention of spread of asbestos) are key to dealing with exposure that is encountered on site.  Such situations may arise if asbestos is 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.  Action to deal with any immediate risks should be taken in line with the guidance given in OC 265/50. Regulation 4 in isolation can not deal with immediate risks from ACMs. 

Other issues to be aware of

20 The topic packs on Migrant working [220KB], Duty to manage asbestos [166KB], and Worker consultation and involvement [263KB] may be relevant and useful when engaging with this sector.

Diversity

21  Visiting staff should be aware of who (in terms of diversity e.g. men, women, disabled etc) is the target group in the sector they are dealing with. Give consideration to, and factor into the approach, any issues that may surround this audience such as literacy issues, English as a second language and disability (access needs).

The Diversity pages give more information on these areas.

Further information and guidance

22  OC 265/50 - This OC provides advice to visiting staff on interpretation of the Control of Asbestos Regulations 2006 including enforcement benchmarks for licensed and non-licensed asbestos removal work and the management of asbestos in buildings.

23  An Approved Code of Practice is available to support regulation 4: The management of asbestos in non-domestic premises L127 (second edition).

24  Guidance booklet: "A comprehensive guide to managing asbestos", HSG227. 

25  Free leaflet INDG223 "A short guide to managing asbestos in premises" [182 KB]

26  Free Leaflet:  “Manage buildings?  You must manage Asbestos” – A jointly badged leaflet produced by HSE in conjunction with the Trade Unions Congress, The Royal Institute of Chartered Surveyors, Federation of Small Businesses, the Asbestos Testing and Consulting division of ARCA, and the British Institute of Facilities Managers.

27  MDHS100 Surveying, sampling and assessment of asbestos containing materials [774 KB] (2001) ISBN 0 7176 2076 X price £18.00) which is also can be found on the website (currently being revised).

28  INDG 419: ‘Asbestos kills: Protect Yourself! You are more at risk than you think’ [264 KB] - A new leaflet for Maintenance workers.

29  INDG 418 ‘Asbestos kills: A quick guide to protecting yourself' [256 KB] - A New Pocket Card for Maintenance Workers.

30  Other useful information on asbestos and DTM can be found on the asbestos website.

31  OC 265/48 Health Effects of Inadvertent Exposure to Asbestos: Guidance for FOD staff when responding to enquiries. (Currently being revised).

32  Campaign resource materials produced as part of the 2008 national publicity campaign – ‘Asbestos – The Hidden Killer’ are available.  These include a new leaflet and a toolbox card. There is also a promotional flyer for the revised “Asbestos Essentials” priced publication (HSG 210) and a covering letter. Visiting staff who want campaign material to hand out during visits (or events) should contact Dave Dawick in CDS 0151 951 4085 dave.dawick@hse.gsi.gov.uk and/or the individual items are also available for download.

Contacts

33  For further information contact: Lydia Harrison on 0151 951 4624 or VPN 523 4624, or via email: lydia.harrison@hse.gsi.gov.uk

34  If you have questions relating to Asbestos Licensing this can be referred, in the first instance to the local Construction Division Asbestos Licensing Principal Inspector (ALPI) or the Asbestos Licensing Unit (ALU) VPN 520 2135, Tel: 0131 247 2135