The legal duties of managing asbestos

The Asbestos Removal Contractors Association look at the occupational handling and removal of asbestos materials in the NHS, as well as outlining how the association’s audit scheme provides the necessary reassurance to it’s members

It is vital that all property owners of premises constructed prior to the year 2000 take the risks from asbestos seriously. Asbestos, the class 1 carcinogen, is the greatest cause of work-related deaths in the UK. Current figures show that approximately 4,500 people die each year in the UK from asbestos related diseases, predominantly in the form of mesothelioma, lung cancer and asbestosis. Therefore, UK law places responsibilities on property owners to ensure that both employees and non-employees are not exposed to health and safety risks as a result of the presence of unmanaged asbestos.

The 1974 Health and Safety at Work Act places a duty on every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees. This requires the NHS to have a robust management plan which can easily be communicated to and understood by all those who have a duty under the plan.

The Control of Asbestos Regulations 2012, Regulation 4, places a legal duty on those who own, occupy, manage or have responsibilities for premises that may contain asbestos. Those who have these responsibilities will either have a legal duty to manage the risk from this material; or a legal duty to co-operate with whoever manages that risk. The requirement is to manage asbestos, not to necessarily remove it. If materials are in good condition and managed so that they cannot be disturbed, a periodic check might be all that is needed.

With a large number of premises, and a large number of employees and visitors, maintenance work is inevitable and accidental damage is often possible. Therefore, all NHS premises which were constructed prior to the year 2000 will require an asbestos management plan based on a management survey. The purpose of the management survey is to manage asbestos containing materials (ACMs) during the normal occupation and use of the premises.

Additionally, the Construction (Design and Management) Regulations 2015 (CDM 2015) places explicit responsibilities on clients. As the client is at the head of the procurement chain, they have the final say on the course of action to be taken during a project. The law therefore requires that clients, when asbestos removal is required, make suitable arrangements for managing the project, and maintain and review those arrangements throughout the project, to ensure health and safety risks are managed appropriately.

Therefore, the NHS is responsible for ensuring appropriate arrangements are in place to manage and organise projects. This means appointing suitably competent people and providing them with sufficient information, time and resources to do the job properly. If asbestos removal is required, the client needs to appoint competent asbestos removal contractors.

Auditing removal work provides reassurance
As the NHS needs to appoint suitably competent people, they need to make reasonable enquiries to satisfy themselves that asbestos removal contractors are appropriately resourced and competent for the work. How and what information can support this?

Guidance on CDM 2015 states: “When considering the requirements for designers and other construction professionals, due weight should also be given to membership of an established professional institution or body. For example, do these bodies have arrangements in place which provide some reassurance that health and safety is part of the route to membership of their profession?”

Audits are a method of monitoring both good management and good risk control, providing reassurance for all parties. In 2000, the Asbestos Removal Contractors Association (ARCA) introduced an audit scheme to provide reassurance of compliance with relevant legislation, to support members’ performance and therefore maintain standards, and to support clients, like the NHS. Member contractors need to participate in ARCA’s audit scheme, which requires two satisfactory site audits every year, to join and maintain membership of the association.

To take a further step towards supporting consistent high standards and a higher level of reassurance, ARCA enhanced its audit scheme in January 2017. Members still need to complete two satisfactory site audits every year, however, ARCA audits are now unannounced, meaning that ARCA members (excluding Ireland) will not have prior knowledge of when, or where, an ARCA auditor will be assessing their performance. Therefore, being unannounced, ARCA site audits are now an even stronger system of reassurance for all parties.

Under CDM 2015, once the NHS had appointed a contractor, they would need to provide the contractor with sufficient information, time and resources to do the job properly. For example, an asbestos removal contractor will need appropriate pre-construction information in order to prepare a suitable work plan, and contractors need time (and access) to assess the premises properly and discuss key site information with the NHS.

Also, an asbestos analyst must be appointed for licensed asbestos work, as the analyst will be required to verify that a work area has been thoroughly cleaned and that airborne fibres in the work area are as low as reasonably practicable, prior to handover for reoccupation or demolition etc. The NHS does have a challenge, mainly due to an extensive portfolio of premises and being the largest employer in the UK. However, with a sound asbestos management plan, which is communicated effectively throughout the NHS, and with the guidance and support available, the NHS can continue to meet its health and safety obligations.

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