Legal update
the maintenance and repair obligation. There is a duty on ‘every person’ to co-operate with the duty holder to allow them to comply with their duties. The duty holder must assess whether asbestos is present on the premises, consider its condition, take account of building plans and ensure that an inspection is made of those parts that are reasonably accessible. The HSE advises that asbestos should be presumed to be present unless there is strong evidence to the contrary. Most buildings constructed after 1999 should not contain asbestos because there was a change in building control requirements. If asbestos is present, the duty holder must determine the risk from the asbestos, prepare a written plan identifying those parts affected and set out measures for managing the risk.
Specialist removal
It is not always necessary to remove asbestos as it can pose a lesser threat if left in place undisturbed. However, there is a requirement to monitor asbestos material. The written plan must be reviewed and revised at regular intervals and without delay. There are plenty of specialist asbestos surveyors who can provide advice, compile the appropriate reports and carry out testing on samples taken from the building.
If removal or treatment of asbestos is necessary, it may be possible to apply for a type of tax relief known as land remediation relief. Capital expenditure by a company on remediation of contaminated land attracts a special capital allowance of 150 per cent, which is granted in the year in which the expenditure is incurred.
This is not something that most operators are aware of and if asbestos is present and needs to be removed, care home operators should consult their accountant or specialist tax adviser to determine whether or not it is possible to claim this relief. The scheme applies to contaminated or derelict land in England, Wales, Scotland or Northern Ireland and covers only the cost of remediation or of bringing derelict land back to productive use and connected expenditure that is additional to normal site preparation costs. Duty holders can apply for an exemption certificate, but the HSE cannot grant an exemption unless it is satisfied that the health and safety of persons likely to be affected will not be prejudiced. The HSE must take into account the circumstances of any conditions it proposes to attach to the exemption and any other requirements
imposed by the enactment. There is also a defence available under regulation four, so that if a person is charged with a breach of the Control of Asbestos Regulations 2012,1
that
person can raise as a defence the fact that they took all reasonable precautions and exercised all due diligence to avoid the offence being committed. Finally, there are some important practical steps that can be taken. For example, once an asbestos register report has been obtained, information about the location of any asbestos should be passed to anyone who is likely to disturb it and in some cases to the emergency services. For example, if a contractor is about to undertake works at a care home where there is asbestos, then they must be informed. Ensuring that asbestos reports are available on acquiring a care home building is important. The absence of an asbestos report may invalidate an insurance policy as it is a criminal offence not to have one and an insurer would quite rightly not wish to entertain a claim for an asbestos related injury if they were unaware of the potential risk. It has also been argued that a solicitor acting for the buyer of a care home, where the seller has failed to obtain an asbestos report, may have to notify the National Crime Agency under the money laundering regulations. This is because failure by the seller to conduct an asbestos survey is a criminal offence and the ‘avoided cost’ of the survey may amount to criminal proceeds in the hands of the seller and ultimately the buyer.
It is therefore essential when buying a new care home that full enquiries are raised. The Commercial Property Standard Enquiries (CPSE) includes detailed questions about asbestos and an asbestos report must always be obtained. The costs saved by not having an asbestos report could pale into insignificance when compared to the possible criminal sanctions including fines that may apply or civil claims and
January 2019 •
www.thecarehomeenvironment.com
in the case of a care home being sold, delays or even the chances of the sale falling through.
TCHE
Reference 1. Health & Safety Executive. Control of Asbestos Regulations 2012. [
www.hse.gov.uk/ asbestos/
regulations.htm]
Resource
Health & Safety Executive. (2011) Evaluation of the Duty to Manage Asbestos -
www.hse.gov.uk/ research/rrpdf/rr783.pdf
Tom Lumsden
Tom Lumsden is a partner at CooperBurnett LLP in Tunbridge Wells, specialising in commercial property. He has particular expertise in the sale and purchase of care homes, including acquiring land for care home development.
Disclaimer: this article is not intended as legal advice and must not be relied upon as such
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