The HSE have begun a review of the level of compliance with Regulation 4 of the Control of Asbestos Regulations, commonly referred to as the ‘Duty to Manage’. Inspectors have been trained specifically to review organisations arrangements and make sure that all the required elements are in place.
More people die from asbestos related diseases a year than are killed on the roads. The figures do not seem to be decreasing as was predicted. In fact, the number of asbestosis cases being reported is dramatically increasing. This reflects the continued exposure caused by the uncontrolled disturbance of installed asbestos products as opposed to exposure during manufacture. Approximately 25% (taken from the Peto Study of 1995) of those dying from asbestos related disease have worked in the building, maintenance and repair trades at some time during their working lives. As such, the maintenance sector now constitutes the biggest group at risk. As part of the review, the level of training provided to workers in these sectors is being closely scrutinised.
The Duty to Manage requires those who have responsibilities for maintenance activities in non-domestic premises to assess whether there is any asbestos in their premises, and depending on its condition, either remove it or manage it, making sure that subsequent maintenance or other activities carried out do not expose the workers to any avoidable risk. They must ensure that information on the location and condition of these materials is given to anyone likely to disturb them.
The Duty to Manage is often mis-interpreted as a duty to Survey. However, Surveying is only the first step of the process. As with the management of any hazard, knowing the location and nature of the hazard is only a first step.
Regulation 4 refers to a Duty Holder, who must ensure that the requirements of the Duty to Manage are being implemented. The Duty Holder might be a single person appointed to that position or there may be multiple Duty Holders where there is multiple occupancy of a building. The regulations places a duty on all parties who have, by virtue of any contract or tenancy agreement, an obligation of any extent in relation to the maintenance or repair of premises or of access or egress to premises to co-operate.
The Duty Holder must take the following key actions:
In 2006/7, the HSE and Local Authorities ran a series of awareness raising events. To support and strengthen this work, HSE’s Disease Reduction Programme ran a communications campaign throughout September and October 2006: the ‘Don’t take the gamble’ campaign. The Campaign was designed to raise the awareness of building maintenance, repair and refurbishment workers of the risks associated with the presence of asbestos in buildings. In addition, the Campaign targeted Duty Holders in trade and regional press to remind them of their responsibilities, as well as sending out direct mail to 80,000 Duty Holders.
The HSE are currently advocating a more proactive approach to enforcement, to build on previous duty to manage inspections and awareness raising work. During routine or enforcement visits by HSE Inspectors, they have been instructed to consider enforcement action when they find the following circumstances:
In addition to tackling the immediate risks, Inspectors are instructed to consider ‘tracking back’ up the procurement chain to find out how the work was planned and which Duty Holders failed to manage the risks from asbestos. Where the failure was caused by a poor Survey or poor removal works, the HSE have confirmed they will take action against those organisations.
The effectiveness of this approach can be seen on the HSE public register of enforcement notices http://www.hse.gov.uk/notices/. This register displays all the prohibition and improvement notices that have been issued. The HSE allow 9 weeks to elapse from issue date in case of appeals before posting the notices.
In week commencing 16 September 2007, prior to the Duty to Manage review starting, 2 notices were issued. Both were the result of poor asbestos removal practices on site. In week commencing 4 November 2007, after the review began, the number of notices increased to 6. Of these, only 1 was for asbestos removal. The other 5 were for breaches of the Duty to Manage.
The report from the review is due to be published at the end of Summer 2008. Following the publication of the report, the HSE will consider what further changes are necessary to the Duty to Manage and what further action is necessary to gain compliance.