The duty to manage asbestos in buildings: Check if you have the duty to manage asbestos (original) (raw)

The duty to manage asbestos in buildings covers:

• all non-domestic premises, like factories or shops
• ‘common parts’ of multi-occupancy domestic premises, like purpose-built flats

Non-domestic premises

Non-domestic premises includes industrial and commercial buildings like:

• factories
• warehouses
• offices
• shops

and public buildings like:

• hospitals
• schools
• premises used for religious worship
• museums and libraries

The person who has the duty to manage asbestos (the 'dutyholder') in non-domestic premises, could include the:

• building owner
• landlord for the premises
• person or organisation with clear responsibility for the building's maintenance or repair

Tenancy agreements

A person or organisation could have responsibility for the maintenance or repair of the premises through a tenancy agreement or contract.

The extent of the duty will depend on the agreement.

In a building occupied by one leaseholder, the agreement might be for either the owner or leaseholder to take on the full duty for the whole building, or they might share the duty.

Our tenancy arrangement examples will help you decide who the dutyholder is.

Multi-occupied buildings

In a multi-occupied building, the agreement might be that the owner takes on the duty for the whole building, or the duty might be shared. For example, the owner takes responsibility for the common parts while the leaseholders take responsibility for the parts they occupy.

Managing agents

Sometimes, there might be an agreement to pass all or some of the responsibilities to a managing agent. However, the legal obligation to comply with duty to manage regulation cannot be passed to a managing agent.

Where there is no clear tenancy agreement or contract

There may be no tenancy agreement or contract. Even if there is one, it may not say who is responsible for the maintenance or repair of non-domestic premises.

In this case, or where the premises are not occupied, whoever has control of the premises, or part of the premises, is responsible. Often this will be the owner.

Examples of tenancy arrangements

Responsibilities may be allocated or shared differently depending on the tenancy arrangements. Here are some examples.

Dutyholder: the owner

• Where the owner has sole responsibility for the premises or common parts of multi-occupied buildings
• Where, under a tenancy agreement or contract, the owner:
  • keeps responsibility for maintenance and repairs
  • controls access by maintenance workers into the building
• If an owner or leaseholder uses a managing agent – the managing agent would act on behalf of the owner but does not assume the owner’s duties in law. Ultimate responsibility remains with the owner

Dutyholder: the person in control of the premises

• Where there is no tenancy agreement or contract.
• When the premises are unoccupied.

Dutyholder: the tenants

• Under a tenancy agreement or contract, where tenants (including employers or occupiers) are responsible for alterations, repairs and maintenance in multi-occupancy premises.

Dutyholder: people responsible for maintaining their part of the premises

• Under a tenancy agreement or contract, where responsibility is shared between several people, for example owners, sub-lessors, occupiers and employers. Each of them has the duty where they are responsible for specific maintenance in their part of the premises.

Public buildings

In public buildings, who the dutyholder is depends on who is responsible for maintenance. For example, for most hospitals, the dutyholder will be the employer.

Schools

Who the dutyholder is varies with the type of school. For local authority managed schools, for example community schools, the local authority is the employer. For voluntary-aided and foundation schools, it will be the school governors.

For academy and free schools, the academy trust will be the dutyholder. For independent and fee-paying schools, it may be the proprietor, governors or trustees.

The local authority sometimes delegates budgets for maintenance to the school. In such cases, the duty to manage asbestos is shared between schools and the local authority.

HSE has a page about asbestos in schools. It covers what schools should do and has links to other government guidance.

The asbestos checklist for schools will help schools review their asbestos management arrangements.

Common parts of domestic premises

In common parts of domestic premises, the person responsible for those areas, such as the landlord of rented accommodation, is responsible for managing asbestos.

The common parts of these premises do not cover individual flats, but do include:

• foyers and corridors
• lifts and lift-shafts
• staircases
• roof spaces
• gardens and yards
• outhouses and garages

Common parts do not include rooms in a private house shared by more than one household. This could include bathrooms and kitchens in shared houses and communal dining rooms and lounges in sheltered accommodation.

The Approved Code of Practice: Managing and working with asbestos has more information about the duty to manage in common parts of domestic premises.

If you are a landlord providing social or private housing, the general duties in section 3(1) of the Health and Safety at Work Act apply to protect tenants and householders from any risks from work activities being carried out in their homes.

Basic building maintenance

If your work includes basic building maintenance, for example as a caretaker or site manager, you do not hold the legal responsibility for duty to manage asbestos. However, any actions you need to take will be identified in the asbestos management plan. You should be aware of any asbestos in the building.

Depending on the tasks you carry out, your employer should arrange appropriate training but as a minimum this should be asbestos awareness training. However, that training does not allow you to work on asbestos.

More information on training for work involving asbestos.

Co-operation

Other people, like those working on a building, should co-operate with the building owner to comply with the above requirements.