Legal update
Dealingwiththecomplex issueof illegalasbestos
Asbestos was once a useful material in building. However, by the late 1960s it was recognised as one of the most significant health hazards in the world and its use is now illegal. Tom Lumsden, a partner at CooperBurnett LLP, looks at the complex issue of how to deal with asbestos
Asbestos is the name given to a group of six different fibrous minerals that occur naturally in the environment. These minerals have long fibres that are strong and flexible enough to be spun and woven and are fire and heat resistant. Asbestos was once a useful material in building where it provided protection from heat, fire and sound and was used in floor tiles as insulation around pipes as well as for wall and ceiling panels and decorative plaster. However, by the late 1960s, the use of asbestos was recognised as one of the most significant health hazards in the world. Its use is now illegal in the construction or refurbishment of any building and there is a lot of legislation that regulates its use, removal and management. The Control of Asbestos Regulations 2012 is the primary legislation dealing with the management of asbestos.1 Failure to comply with the regulations is a criminal offence and a person convicted can be imprisoned in the Crown Court for up to two years and given an unlimited fine. Lesser penalties apply in the Magistrates Court. The Health and Safety Executive (HSE) enforces the regulations rigorously and there are examples where offenders have been hit hard. In one case, a company was fined £100,000 plus costs for failure to prevent its employees from being exposed to asbestos, despite it having an otherwise exemplary health
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and safety record and having taken prompt action to deal with the breach. In 2011, Marks & Spencer Group plc was fined £1 million for health and safety offences relating to the removal of asbestos in two of its stores.
Responsibilities
Civil actions are also possible against the duty holder. The duty holder is anyone who has (by way of a contract or tenancy) an obligation to maintain or repair non-domestic premises or means of access or egress to or from those premises. For example, this would include facilities where residents are tenants and any common areas such as dining facilities, recreational areas and halls, entrances and lifts. Where there is no contractual tenancy, then any person who has control of part of those non- domestic premises or means of access is also a duty holder.
The principal obligation under regulation four of the Control of Asbestos Regulations 2012 puts a duty on the duty holder to manage asbestos risk in non-domestic premises.1
Clearly this would apply to care home premises
and the obligation is to determine whether asbestos is present or is likely to be present and to manage any asbestos that is or is likely to be present. The duty holder must determine whether asbestos is present in the building for which they are responsible, assess the risk and have an action plan and system in place for managing the risk.
Where residents are tenants, although in theory they could be duty holders, it is unlikely that the courts would impose an obligation on someone who may be elderly and infirm to comply with the regulations.1
As most tenancies of this
type require the landlord to maintain the structure of the building, it is likely that the obligation would fall on the care home operator in their role as a landlord. Managing agents can also be the duty holder if they have been contracted to take over maintenance or repair of a care home as can contractors who have a maintenance contract in relation to non- domestic areas. There can also be more than one duty holder for a premises, in which case their relative contributions in complying with regulation four are determined by the nature and extent of
www.thecarehomeenvironment.com • January 2019
©Bernard Maurin -
stock.adobe.com
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