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What is this week's blog about?
In this week’s blog, we take a look at the new RICS Guidance Note Asbestos: Legal Requirements and Best Practice for Property Professionals and Clients 4th Edition.
This is essential reading for all RICS APC and AssocRICS candidates, particularly in relation to the mandatory Health & Safety competency. It is also relevant to the Inspection and Legal/Regulatory Compliance competencies.
The full Guidance Note can be downloaded on the RICS website. You can read more about the basics relating to asbestos in our previous blog article. Whilst the Guidance Note is specific to UK legislation, it is of wider international application and represents best practice.
In this article, the term ACM is used to denote Asbestos Containing Material. In other contexts, it is sometimes used to denote Aluminium Cladding Material and the differences should be noted in their use by candidates. If in doubt, state the full name rather than the acronym.
When does the Guidance Note take effect?
6 August 2021. It replaces the former 3rd Edition Guidance Note, which was published before the Control of Asbestos Regulations 2012 came into force.
What is the aim of the Guidance Note?
The Guidance Note aims to ensure that surveyors and their clients comply with UK legislation relating to asbestos. It also aims to ensure that no one is put at risk of exposure to asbestos.
What legislation and guidance should the Guidance Note be read alongside?
Health & Safety at Work at Act 1974, which places a duty of care on surveyors to manage and control asbestos-related risk
Control of Asbestos Regulations 2012, which specifies specific duties in relation to the management of asbestos
Construction (Design & Management) Regulations (CDM) 2015, which relates to health & safety in construction
Approved Code of Practice (ACOP) L143 (2nd Edition), Managing and Working with Asbestos, published by the Health & Safety Executive (HSE)
HSG265 Asbestos: The Survey Guide, published by HSE relating to undertaking asbestos surveys
Other Government guidance, e.g. CL:AIRE guidance on Asbestos in Soil (CAR-SOIL)
Where might asbestos be found within the property lifecycle?
What are some of the best practice recommendations in the Guidance Note?
All surveyors should have asbestos awareness training, in line with Regulation 10 of the Control of Asbestos Regulations 2012. This includes awareness of asbestos when inspecting premises.
A duty to manage asbestos arises under Regulation 4 of the Control of Asbestos Regulations 2012. This applies to all non-domestic premises, including public buildings and the common parts of multi-occupied domestic premises.
Where the duty of manage under Regulation 4 does not apply, a duty arises (under Sections 2 and 3 of the Health & Safety at Work Act 1974) to minimise the risk of asbestos to the health & safety of others in relation to domestic premises. The Defective Premises Act 1972 and the Homes (Fitness for Human Habitation) Act 2018 also emphasise this duty in domestic premises
The duty to manage can be fulfilled by ensuring that an asbestos register is available, assessing the risk of any asbestos present and making this information available to anyone liable to disturb the asbestos present
Appendix B of the Guidance Note sets out how to identify the dutyholder (B1) and how the duty to manage applies to a variety of asset types (B2).
How might this affect surveyors?
Where an organisation owns premises, they will be the dutyholder and have an obligation to manage asbestos and ensure the safety of their staff.
Where a managing agent is instructed, the landlord (dutyholder) cannot delegate the statutory duty to manage asbestos. However, the landlord can claim (contractually or in tort for a non-contractual duty) against the managing agent if any action or inaction contributes to the landlord’s failure to comply as a dutyholder. The managing agent will also have a duty to manage asbestos risk under the Health & Safety at Work Act 1974.
If the landlord is absent, the dutyholder may acquire additional dutyholder responsibilities as they may be considered to be in charge of the property.
If a surveyor is instructed to carry out refurbishment or building works, they may have a contractual duty and direct responsibility (under Regulation 5) to collate information (refurbishment & demolition survey) on asbestos risk before works commence. This could include ensuring the client issues this information as part of the pre-construction information under CDM 2015.
There are many other instances where surveyors may acquire or hold a duty of care in relation to asbestos risk management and surveyors should ensure they read the Guidance Note in full.
What must dutyholders under Regulation 4 take?
‘Take reasonable steps to find materials likely to contain asbestos.
Presume materials contain asbestos unless there is strong evidence to suppose they do not.
Assess the risk of anyone being exposed to asbestos from these materials.
Make a written record of the location and condition of ACMs and presumed ACMs and keep it up to date (the management survey).
Repair or remove any material that contains or is presumed to contain asbestos, if necessary, because of its location, condition or the likelihood of it being disturbed.
Prepare and put into effect an asbestos management plan (AMP) to manage exposure risk’.
Full compliance will be achieved where an asbestos register and asbestos management plan are held and implemented.
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Stay tuned for our next blog post to help build a better you.
N.b. Nothing in this article constitutes legal, professional or financial advice.