Duty to manage asbestos: who holds it, and what it requires

If you are responsible for maintaining or repairing a commercial building, you hold the duty to manage asbestos in it, and that duty applies before anyone has confirmed asbestos is there. Regulation 4 of the Control of Asbestos Regulations 2012 (CAR 2012) calls you the dutyholder. It requires you to assess whether asbestos is likely to be present, record what you conclude, and keep a written plan for managing it. These are Great Britain duties.

Who the dutyholder is

Regulation 4(1) of CAR 2012 defines the dutyholder by obligation, not by ownership. Two tests decide it, in order.

The first test is contractual. Anyone who has an obligation of any extent for the maintenance or repair of non-domestic premises, under a contract or a tenancy, is a dutyholder. Because of the words "any extent", a repairing obligation covering part of a building is enough.

The second test applies where no contract or tenancy covers a part of the premises. There, the dutyholder is whoever has control of that part, to any extent.

Your position	Who holds the duty
Freeholder, building fully let on full repairing leases	The tenants, for the parts they repair
Freeholder retaining the structure and common parts	You, for the retained parts
Tenant under a full repairing and insuring lease	You
Managing agent whose contract makes it responsible for maintenance	You, alongside the owner
Part of a building covered by no repairing obligation	Whoever controls that part

Regulation 4(1) of CAR 2012 also says that where more than one dutyholder exists, each contributes according to the nature and extent of the obligation owed. So a landlord and a tenant can both hold the duty over one building, for different parts of it, at the same time. Regulation 4(2) of CAR 2012 then requires everybody else to cooperate with the dutyholder so far as is necessary.

"Non-domestic premises" comes from section 53 of the Health and Safety at Work etc. Act 1974, which defines domestic premises as those occupied as a private dwelling, including a garage or outhouse that serves only that one dwelling. Anything used in common by the occupants of more than one dwelling falls outside that definition. The communal stairwell, plant room and bin store of a residential block are therefore non-domestic, and the duty reaches them.

What the duty to manage requires

The duties in regulation 4 of CAR 2012 run in sequence.

What you must do	Where it comes from
Carry out a suitable and sufficient assessment of whether asbestos is or is liable to be present	Reg 4(3) of CAR 2012
Take account of building plans, other relevant information and the age of the premises, and inspect the reasonably accessible parts	Reg 4(5) of CAR 2012
Record the conclusions of the assessment and of every review	Reg 4(7) of CAR 2012
Determine the risk and prepare a written plan identifying the parts concerned	Reg 4(8) of CAR 2012
Specify measures for monitoring condition, maintaining or safely removing the material, and passing information to anyone liable to disturb it	Reg 4(9) of CAR 2012
Review and revise the plan at regular intervals, implement the measures, and record what was done	Reg 4(10) of CAR 2012

Three of them need close reading.

The age of the building is evidence you are required to consider. Regulation 4(5)(a) of CAR 2012 puts building plans, other relevant information and the age of the premises into the assessment. A building finished after asbestos was banned in construction carries a different answer from one built in 1974, and the reasoning belongs in the record.

The plan has to be reviewed, implemented and recorded. Regulation 4(10) of CAR 2012 makes these three separate requirements: review and revise the plan at regular intervals, implement its measures, and record the measures taken. A written plan filed and left alone meets none of them, and an inspector may ask for evidence of each.

Information goes to two audiences. Regulation 4(9)(c) of CAR 2012 requires the location and condition of asbestos to be given to every person liable to disturb it, and made available to the emergency services. The first audience covers contractors, so the register needs to reach the electrician on site this morning. The second is a separate obligation.

Reviews are triggered by events as well as by the calendar. Under regulation 4(6) of CAR 2012 the assessment is reviewed without delay where there is reason to suspect it is no longer valid, or where the premises have significantly changed.

Do you need an asbestos survey?

Regulation 4 of CAR 2012 requires an assessment. It does not require a survey.

The regulation asks for a suitable and sufficient assessment of whether asbestos is or is liable to be present, supported by building plans, the age of the building and an inspection of the accessible parts. A management survey produces that evidence, and for an older building it is the practical answer. For a building constructed well after the ban, a documented assessment reaching a reasoned conclusion may be sufficient on its own.

You also have the option of presuming. A dutyholder who assumes asbestos is present, and manages the material on that basis, can meet the duty without sampling. The presumption becomes expensive as soon as work has to happen, because every intrusive job is then priced and controlled as asbestos work.

The survey question changes once refurbishment or demolition is planned, because a management survey is designed for premises in normal occupation and covers what is reasonably accessible. Our guide on whether you need an asbestos survey for your workplace sets out the survey types, and our asbestos survey service covers what each one includes.

Asbestos in construction and maintenance: a separate duty

Building owners and employers hold different duties, under different regulations.

Regulation 5 of CAR 2012 applies to the employer carrying out the work. It prohibits demolition, maintenance or any other work that exposes or is liable to expose employees to asbestos unless that employer has carried out its own suitable and sufficient assessment of whether asbestos is present, what type it is, what material contains it and what condition it is in. Where doubt remains, regulation 5(b) of CAR 2012 requires the employer to assume asbestos is present, to assume it is not chrysotile alone, and to work to the Regulations on that basis.

The practical consequence is that a contractor cannot discharge its duty by relying on the register it was handed. The register is information the dutyholder owes under regulation 4(9)(c) of CAR 2012, and the contractor still owes its own assessment under regulation 5 of the same Regulations. On a maintenance contract, both duties are live at once.

Regulation 10 of CAR 2012 adds information, instruction and training for anyone whose work could expose them. That reaches trades who never intend to touch asbestos, including electricians, plumbers and joiners, because the exposure risk in maintenance comes from disturbing material nobody expected to find.

Managing this well is an ongoing arrangement across your premises and your contractors, which is the ground our health and safety consultancy covers.

Frequently asked questions

Who is the dutyholder for asbestos? The person or organisation with an obligation, under a contract or tenancy, for the maintenance or repair of non-domestic premises. Where no such obligation exists over part of the premises, it is whoever controls that part.

Does the duty to manage asbestos apply to my building if it was built after 2000? The duty applies to all non-domestic premises. What changes with a modern building is the answer your assessment reaches, and regulation 4(5) of CAR 2012 requires the age of the premises to be part of that reasoning.

Do I have to remove asbestos? No. Regulation 4(9)(b) of CAR 2012 requires asbestos to be properly maintained or, where necessary, safely removed. Removal is one of the two routes the regulation allows, and it is required only where necessary.

How often should an asbestos management plan be reviewed? Regulation 4(10) of CAR 2012 requires review at regular intervals, and without delay where there is reason to suspect the plan is no longer valid or the premises have significantly changed.

Does a landlord or a tenant hold the duty? Whichever of them carries the repairing obligation for the part in question, and both can hold it for different parts. A full repairing lease of a whole building puts it on the tenant. Where the landlord keeps the structure and common parts, the landlord holds it for those.

Is an asbestos register the same as a management plan? No. The register records where the material is and what condition it is in. The plan, required by regulation 4(8) of CAR 2012, sets out the measures for managing the risk, who carries them out and when.

When was the duty to manage asbestos introduced? On 21 May 2004. It began as regulation 4 of the Control of Asbestos at Work Regulations 2002, which came into force in November 2002 with the duty to manage deferred to May 2004. It has since been re-made, and now sits in regulation 4 of CAR 2012 in almost the same words.