Asbestos At Work
Wednesday, April 21, 2004
by
Richard Smith
Around 500,000 business premises in Britain contain Asbestos. Is your premises one of them?
On 21 May 2004 the new “Control of Asbestos at Work Regulations” came into force. Are you responsible for the “Duty to Manage”?
Understanding the regulations and your Duty to Manage is essential in ensuring you protect yourself, your business and your employees.
The dangers of asbestos and its effects on the health of people exposed to it have been known for many years. In most cases, existing asbestos does not create a great danger since it is usually covered, encased or similarly protected. Those who work within the building are usually not in danger but maintenance workers, electricians, joiners, etc who, during repair and maintenance work are likely to disturb the existing asbestos are likely to create a danger for both themselves and others.
Regulation 4 of the Control of Asbestos At Work Regulations 2002 and its Approved Code of Practice (“the Regulations”) comes into force on 21 May 2004. Originally it was aimed solely at employers but, following consultation, it was obvious that not all employers had the ability to search for asbestos, or indeed if found, do anything about it. This regulation now creates a responsibility on a “duty holder” to identify, monitor and control asbestos which exists in the work place.
Essentially this extends to anyone with a maintenance obligation or control of any part of “non domestic” premises, namely: -
- anyone who has a maintenance obligation which could arise either by a tenancy or by a contract. (This could include not just landlords, builders, maintenance contractors and management companies, but also managing agents as well as tenants);
- anyone who has “control” where there is no such contract or tenancy – this would include freehold/feuhold owners/occupiers; and
- virtually all employers who will fall within the definition of a “duty holder” (accountancy and solicitors’ firms included).
From 21 May 2004 there will be a further obligation on all parties within a building to co-operate with a duty holder. So if the landlord retains the obligation as the duty holder of your premises with no maintenance responsibility passing to you, you will be required to co-operate to enable him to comply with his own obligations.
Properties affected by the Regulations will include all commercial properties together with institutional properties such as libraries, hospitals, prisons and the common parts of flats within residential developments. There is an assumption that asbestos is present within these properties unless it can be proved otherwise. Accordingly in order to comply with the Regulations the duty holder must carry out a risk assessment and record its results.
The assessment should be by inspection of reasonably accessible parts of the premises and if the asbestos is identified as present within premises, it needs to be located, a record made of its condition and a plan compiled for its treatment.
The records should be kept up to date and made available at the premises by any person who needs to know its location (e.g. maintenance workers, emergency services, etc). The condition of the located asbestos should be monitored thereafter; any asbestos found must be properly maintained or, where necessary, safely removed.
The introduction of the legislation could result in potentially very high levels of expenditure being incurred by the duty holders ranging from the need to re-lag pipes, insulation and boilers, re-insulate electrical equipment, replace ceiling tiles and renew fire protection equipment and asbestos cement products e.g. wall and roof cladding.
In March 2002 the Inland Revenue confirmed that corporate landlords will be able to claim tax relief against the cost of clearing asbestos from buildings as well as land. They have however more recently pointed out that companies (tenants and landlords) will not be able to claim tax relief on clean-up costs merely because there is asbestos in the building since the Regulations apply to land or buildings that are in a “contaminated state” (defined as land or buildings where, due to the existence of a substance “harm is being caused or is likely to be caused”).
The Revenue have indicated that they will look at each case on a case-by-case basis and it may well be advisable to achieve an agreement with the Revenue on any possible tax relief before extensive works are carried out. It may also be possible to claim capital allowances when submitting the claim via the tax return in the hope that the Revenue will provide some form of relief on such expenditure which was previously not envisaged by the duty holder.
The upshot of the Regulations is that an assessment of all non-domestic properties must be carried out.
Solicitors and accountants will therefore find themselves not only advising clients on the Regulations and any tax benefits available to them but also addressing the issue themselves with regard to their own obligations as a “duty holder”.
*(Source: ‘The Sunday Times, March 7 2004’)
If you are a duty holder and would like further information on the implications of Regulation 4 of the Control of Asbestos At Work Regulations 2002 and its Approved Code of Practice (“the Regulations”) please contact Richard Smith on 0141 228 8000 or email rsmith@biggartbaillie.co.uk.
The information contained in this article is given for general information only and does not constitute legal advice on any specific matter.