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Regulation 4 of the Control of Asbestos as Work Regulations 2002

The Control of Asbestos at Work Regulations 2002 (CAWR) introduce an explicit duty to manage asbestos in non-domestic premises, which came into force on 21 May 2004.

This important legislation tackles the biggest occupational health killer in the UK – asbestos-related disease. Of the 3,500 people currently dying each year from such diseases 25% have once worked in the building and maintenance trades and often would have worked unknowingly on or near to asbestos containing materials (ACMs). Whilst virtually all other activities involving potential exposure to asbestos have now ceased, our evidence suggests that this vulnerable group is still at considerable risk from unknowing exposure to asbestos.

The requirements of the new duty seek to prevent further unknowing exposure to asbestos by building and maintenance workers with the aim of saving 5,000 lives over the next 100 years.

Duty requirements

The duty to manage requires those in control of premises to:

• take reasonable steps to determine the location and condition of materials likely to contain asbestos;
• presume materials contain asbestos unless there is strong evidence that they do not;
• make and keep an up to date record of the location and condition of the ACMs or presumed ACMs in the premises;
• assess the risk of the likelihood of anyone being exposed to fibres from these materials;
• prepare a plan setting out how the risks from the materials are to be managed;
• take the necessary steps to put the plan into action;
• review and monitor the plan periodically; and
• provide information on the location and condition of the materials to anyone who is liable to work on or disturb them.

What premises are affected?

The new regulation covers all non-domestic premises, whatever type of business is carried out in them. It also covers the common areas of domestic premises, including halls, stair wells, lift shafts and roof spaces.

Who will be the dutyholder?

All those who have responsibility for the maintenance and/or repair of non-domestic premises have duties under this regulation. The extent of the legal duty is determined by the terms of any tenancy agreement or contract that applies, and in the absence of any such agreement, on the degree of control the party has over the premises.

The dutyholder may well be the landlord, tenant or a managing agent, depending on the circumstances of the case. In some situations, responsibility could be shared between two or more parties.

The regulation also includes a duty to cooperate, which applies widely. This will, for example, require a tenant to allow a landlord to gain access to a building to carry out a survey. Also a building surveyor or architect who had plans which show information on the whereabouts of asbestos would be expected to make these available to the dutyholder at a reasonable cost.

Full details of the Control of Asbestos at Work Regulations 2002 (SI 2002/2675) are available through HMSO, including the option to download from their website.