This guide covers social landlords’ responsibilities for managing any asbestos, including asbestos containing material (ACM), in their properties to protect anyone using or working in their premises from the risks to health that exposure to asbestos causes.
Asbestos Q&A update August 2019
Q. What is happening to the Asbestos Regulations and Guidance?
A. No changes are proposed to the Control of Asbestos Regulations 2012 (CAR) but HSE has agreed that supplemental guidance would be beneficial for those responsible for asbestos compliance for domestic and mixed tenure property portfolios, such as social landlords.
Q. Why is HSE doing this?
A. The prevailing asbestos regulations within the UK are currently written primarily with application to ‘Non-Domestic’ properties in mind, these include shops, offices, factories, hospitals, civic or public buildings, hotels, places of work, and the like.
However, related compliance obligations still apply to common areas associated with tenanted domestic property but it is less clear to what extent. It is less well defined when they do or do not apply to domestic areas and consequently open to differing interpretation. This is an unsatisfactory situation for those responsible for managing or commissioning work to tenanted domestic property portfolios because there are recurring queries which remain in respect to the practical application of asbestos regulation responsibilities. For example, what constitutes direct statutory obligation, an expected ‘duty of care’, or merely voluntary ‘good practice’ is often less than clear and therefore varies between differing organisations.
Q. Who is involved?
A. The 'Domestic Asbestos Guidance Group' has been formed following discussions and agreement with the HSE designated responsible officer. The Group includes representatives from experienced asbestos professionals, as well as social housing landlords. One member is Julian Ransom, an asbestos practitioner and long standing NHMF Committee member, who first reached agreement with HSE that there was a need for such supplemental guidance. NHMF members will provide further input via an editorial reading panel at draft stage.
Q. What is the purpose of this additional/ new guidance?
A. The purpose of this supplemental guidance is to help de-mystify asbestos compliance when considering how it should be applied in the case of rented domestic housing, including what constitutes 'acceptable' practice and to clarify appropriate roles and responsibilities.
Q. What are the common scenarios where compliance may be unclear at the moment?
A. Common scenarios or areas left open to individual interpretation typically can include:
- Exactly what parts of a building maybe regarded as communal (‘non-domestic’), and which are domestic?
- Should domestic properties (houses and flats) be surveyed for asbestos? If so, what proportion and why?
- Should asbestos containing materials within domestic areas be subject to monitoring (re-inspection) at all and, if so, how often?
- What information regarding known or presumed asbestos containing materials (ACMs) should be provided to tenants / occupants and in what format?
- Are asbestos material ‘priority risk assessments’ (a mandatory obligation to ‘dutyholders’ within HSG 227 guidance) equally relevant to domestic dwellings?
- When is a roof space ‘private’ or ‘communal’?
- How often should ACMs in non-domestic (communal) areas be re-inspected?
- What should a re-inspection survey look like / constitute?
- Who can be deemed ‘competent’ to carry out ACM monitoring / re-inspection?
- What level of survey information is sufficient to provide to a responsive repairs contractor undertaking routine repairs?
- What constitutes a ‘competent’ general contractor (or direct labour organisation) in respect of asbestos compliance?
- What proportion of intrusive (Refurbishment and Demolition) surveys are required prior to work disturbing the fabric of many similar domestic dwellings?
- Is a ‘Principal Designer’ (Construction Design Management Regulations 2015) required to specify what material/technique is necessary when replacing or penetrating an ACM providing fire compartmentation?
- Is it ok to build on sites with asbestos within the subsoil?
- When should damage to a suspected asbestos material warrant a RIDDOR submission (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013)?
Q. How will the new guidance be published?
A. The guidance will appear as a series of ‘practice notes’ on the HSE web site and under the auspices of the existing ALG* (Asbestos Liaison Group). It is intended these will subsequently be collated as a single document with a forward from the HSE.
*The ALG is a forum of key stakeholders that works together in a constructive way to promote best standards and practice in relation to control and work with asbestos.
Q. Where can I find more information?
A. Links to the new practice notes will be available via the NHMF Web site when available. Current guidance relevant to this compliance area can be found via the following links:
HSG 264 'Asbestos; Asbestos; The Survey Guide' (second edition 2012) holds ACoP status
Q. What are the implications for social landlords?
A. As 'dutyholder', social landlords have legal responsibilities towards their tenants, leaseholders, employees and contractors in respect to managing asbestos within their properties. The HSE may prosecute any landlords failing in their duties as defined under CAR 2012, or related asbestos responsibilities which may arise via the Construction Design Management Regulations (CDMR) 2015, and the Health & Safety At Work Act (HASWA) 1974.
Q. How can I keep up to date?
A. Links, as and when published, will be made available to each practice note via the asbestos section of the NHMF Best Practice website.
Should you have any related queries or suggested related topics in relation to interpretation of asbestos regulation in regard to social housing and tenanted portfolios, please submit them here.
Legislation and Statutory requirements
Landlords must ensure that the Control of Asbestos Regulations 2012 (CAR) is complied with in the case of domestic premises, and more specifically the common parts associated with them. Any operative must also comply with these Regulations. These regulations require that a risk assessment is carried out before any work is started to see if asbestos is present and to ensure that appropriate precautions are taken to deal with any asbestos that is identified. Landlords have a duty to manage asbestos under regulation 4 of CAR that applies only to non-domestic premises, including common areas of flats and other domestic premises. This duty does not apply to the individual flats themselves or to family houses but these are covered by specific housing legislation relating to safety in homes (see below). HSE has provided a fuller explanation of where this duty applies in domestic premises and when licensed contractors should be used.
Landlords also have to comply with CDM Regulations when commissioning or undertaking repair or construction work. As it may pose a potential risk, these Regulations include an obligation on the landlord, where it is aware asbestos is present, to notify those responsible for commissioning or undertaking repair or construction work (including response repair teams) of its presence.
In England and Wales the Housing Act 2004 applies to individual homes, including the licensing of houses in multiple-occupation (HMO) and other residential accommodation. Asbestos is one of the hazards assessed under the Housing Health and Safety Rating System (HHSRS).
The relevant legislation in Scotland is the Housing (Scotland) Act 2014. In Northern Ireland the Department for Social Development regulates registered housing associations under the Regulatory Framework for Registered Housing Associations in Northern Ireland 2006.
HSE are responsible for enforcing asbestos management and removal in England, Wales and Scotland. In Northern Ireland the enforcing authority is HSE Northern Ireland (hseni).
The HHSRS under the Housing Act is enforced by local authorities. For category 1 hazards an improvement notice will be served or, in more extreme cases, a prohibition order may be served. The Act gives local authorities powers of access for the purposes of inspecting to see if a category 1 or 2 hazard exists.
In England, the Regulator of Social Housing (RSH), requires registered providers to comply with its Regulatory Standards. On 1 October 2018 the RSH became a standalone public body, independent from the Homes and Communities Agency (HCA). On 11 January 2018, the HCA’s non-regulation arm adopted its new trading name Homes England. Managing asbestos is covered by the Home Standard that requires meeting all statutory requirements for the health and safety of occupants.
In Wales all social landlords are required to meet and maintain the Welsh Housing Quality Standard (WHQS) as soon as possible, but in any event no later than 2020.
In Scotland, social landlords are required to meet the minimum Scottish Housing Quality Standard (SHQS) . Meeting the SQHS includes compliance with Technical Guide for healthy, safe and secure homes including asbestos. The Scottish Housing Regulator expects compliance with all statutory and regulatory obligations including managing asbestos.
In Northern Ireland the Department for Social Development regulates registered housing associations under the Regulatory Framework for Registered Housing Associations in Northern Ireland 2006. Regulatory Standard 3.3 states that housing associations must develop, manage and maintain good-quality homes that seek to meet people’s needs and preferences now and in the future. This includes meeting the Decent Homes Standard and compliance with all statutory and regulatory obligations including managing asbestos.
Compliance - good and efficient practice
HSE has produced guidance on managing and working with asbestos that explains what needs to be done before any work is carried out on a building which may have asbestos (i.e. built or refurbished before 2000). This includes identifying if asbestos is present (including type and condition), whether a survey should be undertaken and assessing whether work can be carried out to avoid the risk of exposure to asbestos (a risk assessment). Under CAR some non-licensed work has to be notified and brief written records kept. In addition all workers carrying out non-licensed work must be under health surveillance by a Doctor.
The duty to manage asbestos explains what is required of landlords (as the duty holder), such as taking reasonable steps to identify asbestos, keeping up-to-date records of location and condition of asbestos containing materials and assessing and managing risks. Detailed and updated guidance is provided in the Approved Code of Practice (ACOP) L143 Managing and working with asbestos (note ACOP 127 has been withdrawn), which also sets out who is the dutyholder under differing tenancy arrangements. HSE’s ‘A comprehensive guide to Managing Asbestos in premises’ is also useful.
To help people commissioning and carrying out asbestos surveys, as well as those with specific responsibilities for managing the risks from asbestos in non-domestic premises under regulation 4 of CAR 2012, HSE has published "HSG264 Asbestos: The survey guide". The guide covers competence and quality assurance, which may be relevant to how the dutyholder selects an appropriate survey company, as well as how to plan and carry out a survey. It explains what the survey report should cover and how the dutyholder should use the survey information to then actively manage any asbestos materials identified, particularly in communal areas. HSG264 explains that a management survey can be planned for a representative sample of homes (archetypal group) based on a desk-top study, especially before any Planned Improvement programme commences. However, there is no set proportion of inspection which is satisfactory. Surveys must be undertaken "until the results demonstrate as far as reasonably practicable that there is consistency in the range of ACMs" in the specific property type being considered. The results of these inspections must also be provided to your contractor. Where works are likely to be intrusive or where there is a risk of disturbing the existing structure and exposing hidden asbestos that would not be detected with a management survey, a Refurbishment and Demolition survey should be considered.
Where landlords have found asbestos in communal and work areas, some have written to residents notifying them of its presence and have also sent a general letter regarding asbestos to all residents living in individual homes. While there is no legal mandate to do so, increasingly landlords are choosing to inform their residents both generally (through leaflets, web site information, newsletter articles, etc) and specifically (post survey, regarding their individual home) about where there is/ may be asbestos within their home, the potential risks and the associated "do’s and don’ts".
HSE also produce guidance for licensed contractors and analysts.