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There is currently no legislation covering asbestos in ‘domestic’ properties (i.e. private let accommodation), although it does come into effect with regard to common areas.
If asbestos previously unknown to an agency that lets a property is disturbed by a contractor instructed by the agency (via landlord consent); would liability fall on landlord as duty holder, or agency for managing property?
There appears to be a grey area as to whether private let properties fall within CAR 2012 – one school of thought is that if the landlord derives an income from letting the property, it then becomes non-domestic with regard to CAR 2012. Others disagree.
Contractors are informed as part of the instruction of works process that if they suspect asbestos in any area where they are working, they are to stop work immediately and contact the agency.
What is the consensus of opinion from my learned colleagues?
I am fully aware of liabilities with regard to commercial premises, but this one has me a little confused. I have found a memo from the HSE to housing associations regarding this, but I would suggest that this would be easier to manage as they own their housing stock.
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Do the contractors have any Asbestos Awareness training as it does come in many different forms and maybe not be present where they expect it ???
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Lewes
Thius is one aspect that I am currently looking at, as it is something that I would like to see. However, each branch appoints its own contractors, so I can see this being difficult to manage.
However; in this instance, the contractor in question would have had a high awareness of asbestos and where it is likely to be found.
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Personally I would go down the route of Asbestos Awareness training for sub-contractors.
From the HSE website
The general duties in Section 3(1) of the Health and Safety at Work etc Act 1974 (HSW Act) apply to protect householders from any risks from work activities being carried out in their homes. Where work being done involves asbestos-containing materials then the Control of Asbestos Regulations 2012 will also apply, in particular:
regulation 11 (Prevention or reduction of exposure to asbestos);
regulation 15 (Arrangements to deal with accidents, incidents and emergencies); and
regulation 16 (Duty to prevent or reduce the spread of asbestos.
In owner-occupied domestic properties, the owners are not legally responsible for risks to contractors from asbestos, as the owners themselves are not engaged in any work activity.
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It must be comforting to know that in the coming years, decades or longer, most of the existing houses in the country have asbestos throughout the building and at some point will all have to be demolished for new houses, so the risks to all of us who live in houses with asbestos, will be around for a very long time.
There will continue to be a need for all the professionals to be aware of the control of asbestos regulations - no matter what happens, those risks will still be present in our homes. Homes may be exempt to our current laws, but good practice dictates you take note of where you think asbestos lurks and think to yourself before doing some DIY.
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Nick, it is a grey area and I can't help but feel that the HSE could do with updating their guidance in respect to this sort of situation. I don't know the definitive answer, although this has been discussed a number of times and a search of the forums may help.
However, a couple of things.
1. "There is currently no legislation covering asbestos in ‘domestic’ properties". I know what you're saying but section 2/3 and MHSWR duties remain and may be relevant. So. The employer might reasonably have (criminal) liability for employees under s2 and for anyone else exposed under s3 and possibly liability under the duty to carry out a risk assessment under MHSWR. They MAY also have liability under common law.
2. "...would liability fall on landlord as duty holder, or agency for managing property?". In some respects you MAY have answered your own question by the use of the term duty holder; you might reasonably argue that the duty holder is the one who owes the duty!
Sorry I can't be more helpful, but suffice to ay that there ARE relevant duties to protect both employees and others exposed, although these may not be duties under CAR.
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My thoughts would be that the Landlord as the owner of the property - would asume responsibility for the risk of asbestos in the property. They own the property and are letting it, commercial business.
Why was the letting agency/home owner unaware of the asbestos in the property?
What date was the property constructed?
If it was pre 2000 you would need to assume that asbestos would be present - if an asbestos survey had not taken place to determine the presence.
The Landlord has put workers/contractors into a property and put them at risk by not supplying them with an asbestos survey.
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Canopener/ Peter_OC
Thank you for confirming what I was thinking. I was deliberately vague in my OP for various reasons.
The issue is (as it currently stands), LA or HA housing stock is relatively easy to manage. The private sector is somewhat different. Properties can oftgen be transient between agencies - some of which ask more questions than others. Also, if a landlord feels a given agency is making them jump through too many hoops, they are free to look elsewhere. I don't particularly agree with this, but unfortunately, it is what it is at present until legislation/ guidance is tightened up.
We do ask a multitude of questions prior to accepting a property (including whether there is asbestos present); however, if a business has been acquired, and absorbed into the Group, there are a lot of historical properties/ landlords where this might not have been the case. This is something that I am currently looking at.
This is potentially a huge area to cover - and will undoubtedly take time, but I do feel that more detailed advice from regulatory bodies should be more forthcoming.
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Nick
As you have found out already, residential property is a nightmare when dealing with asbestos, CDM duties and other onerous matters. Unfortunately organisations involved generally try to negate their responsibilities by passing the buck to others. There are no simple answers with this one because it all depends on the circumstances - the Devil is in the detail.
'If asbestos previously unknown to an agency that lets a property is disturbed by a contractor instructed by the agency (via landlord consent); would liability fall on landlord as duty holder, or agency for managing property?'
Both could be deemed liable via a shared responsibility - that could only be confirmed in court.
I think your best angle is via the CDM Regs, although domestic properties there is a commercial involvement, hence it falls under CDM. A Client is responsible for ensuring pre-construction information is supplied to the PC/Main Contractor, which includes hazards (asbestos) information. Therefore the onus lies firmly with the Client (whoever that may be) and you need to establish who is the Client at the earliest opportunity.
The CDM Regs - love or hate them, use them to your advantage.
Ray
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Ray - thank you for this, much appreciated.
So, am I correct in thinking the following would be correct (although a very simplified version as there are many permutations, depending on whether the agent is 'fully managing' the property or not).
Landlord = Client
Agent = Principal Contractor
Maintenance contractors (gas/ electric/ handyman/ etc) = Sub-contractor.
Nick
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Rank: Super forum user 
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Cant say I agree with all the replies. I am dealing with the very same situation and have had it confirmed by the HSE. This link will help clarify: http://www.hse.gov.uk/as...os/campaign/duty.htm#whoSpecifically this information: Who has the duty? In many cases, the dutyholder is the person or organisation that has clear responsibility for the maintenance or repair of non-domestic premises through an explicit agreement such as a tenancy agreement or contract. The extent of the duty will depend on the nature of that 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 it might be to share the duty. In a multi-occupied building, the agreement might be that the owner takes on the full duty for the whole building. Or it might be that the duty is shared - for example, the owner takes responsibility for the common parts while the leaseholders take responsibility for the parts they occupy. Sometimes, there might be an agreement to pass the responsibilities to a managing agent. In some cases, there may be no tenancy agreement or contract. Or, if there is, it may not specify who has responsibility for the maintenance or repair of non-domestic premises. In these cases, or where the premises are unoccupied, the duty is placed on whoever has control of the premises, or part of the premises. Often this will be the owner.
You will need to refer to the contractual agreement. I do suspect though that if it is a property which is let by a Mr Joe Bloggs, the HSE would be looking to prosecute the contractor carrying out the task as they are in control of the area at the time of the works taking place and are expected to understand their requirements. This would lead to the question: "did you notify the client of their duties and is that documented?" Answer: Yes Question: "So why did you proceed with works?" Its a toughy but if you want the works your put in a situation where you have to take on the costs unfortunately.
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Nick
Below is an extract from the CDM Regs...someone is the Client, you need to establish who it is.
If there is doubt
41 In some circumstances it may not be immediately obvious who is legally the client and there can sometimes be more than one client involved in a project. To avoid confusion, this needs to be resolved by those involved at the earliest stage possible. Take into account who:
(a) ultimately decides what is to be constructed, where, when and by whom;
(b) commissions the design and construction work (the employer in contract terminology);
(c) initiates the work;
(d) is at the head of the procurement chain;
(e) engages the contractors.
42 If there is still doubt, then all of the possible clients can appoint one of them as the only client for the purposes of CDM2007 (see regulation 8). Someone will always be the client. It is in the interests of all possible contenders to identify who it is. If not they run the risk that all will be considered to carry the client’s duties under the Regulations.
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Jarsmith - is this in relation to a residential property or commercial (or can you not say on a public forum)?
My conundrum is when (or even if) does a private let residential property become a commercial premises?
I'm aware of the threshold if undergoing construction/ renovation/ conversion. However, I'm looking more at general maintenance. Think plumber coming in to fix a burst pipe; a gas engineer coming in to carry out remedial works to a boiler (and/ or a concealed flue); an electrician coming in to replace a damaged/ faulty consumer unit.
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Nick
With respect, your last few postings have indicated you are either out of depth or in a right old pickle, possibly both?
I think Jarsmith has got the wrong end of the stick and is referring to non-domestic properties, a different concept altogether.
Domestic properties become non-domestic when there is a commercial activity associated with the work, as in your particular example.
CDM regs describe maintenance as construction work, not a very useful definition - granted, but there ya go.
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Rank: Super forum user
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RayRapp, are you stating that the landlord (Old Mrs Betts) would pay for an asbestos survey of their premises?
When the tenant lets their property, they will sign a document which may, or may not, state that the letting agency will take full responsibility for keeping the property in good order and the maintaining the premises to the current standards. It probably will also state that the letting agency will take full responsibility for works carried out in the property.
If we are referring to the CDM regulations then, is this not work for a domestic client? Which still puts the onus on the principal contractor to adhere to the CDM regulations i.e. Put in place a suitable plan to manage the risks from Asbestos.
Just interested in your response rather than nit picking. I think this does highlight that the HSEs current guidance is very grey and that the reliance of relying on over regulations and guidance is ridiculous seeing as there has been ample chance for this type of guidance to be provided. They should be very clear and concise taking into consideration the type of stuff we are dealing with here?
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Though not a full answer to the OP, the question really is when is a domestic property not a domestic property, when it becomes a workplace, the following is from the HSE website FAQ's on asbestos:
"The general duties in Section 3(1) of the Health and Safety at Work etc Act 1974 (HSW Act) apply to protect householders from any risks from work activities being carried out in their homes. Where work being done involves asbestos-containing materials then the Control of Asbestos Regulations 2012 will also apply, in particular:
regulation 11 (Prevention or reduction of exposure to asbestos);
regulation 15 (Arrangements to deal with accidents, incidents and emergencies); and
regulation 16 (Duty to prevent or reduce the spread of asbestos.
In owner-occupied domestic properties, the owners are not legally responsible for risks to contractors from asbestos, as the owners themselves are not engaged in any work activity"
The above relates to when the occupier is the owner, but the same principles will surely apply if the occupier is a tenant.
If the maintenance company are sending in operatives to carry out repairs then the employer owes a duty of care to the worker as the domestic property now becomes a workplace and all various Regs will apply, and to the tenant so as not to expose them to harm, regardless of the occupiers tenure.
I would suggest that you follow the guidance set out for Housing Associations and Local Authorities and you won't go far wrong. The owner will be the duty holder as they are in control of the premises, they can't be absolved of their responsibilities just by engaging a lettings company unless the contract has been explicit so as to transfer that duty.
This is just MHO.
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Rank: Super forum user
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Rank: Super forum user
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Lisa - thank you. This is exactly what I have said to those concerned. Just felt I needed a little confirmation.
Ray - no, not out of my depth, although I do concede that I do sometimes struggle with CDM as I do not often have to refer to it. Thank you though for your advice - again, much appreciated.
Off now to carry on tweaking what we already have in place, and adding more control measures where it is felt appropriate. Next step will be getting it approved...
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jarsmith83 wrote:RayRapp, are you stating that the landlord (Old Mrs Betts) would pay for an asbestos survey of their premises?
When the tenant lets their property, they will sign a document which may, or may not, state that the letting agency will take full responsibility for keeping the property in good order and the maintaining the premises to the current standards. It probably will also state that the letting agency will take full responsibility for works carried out in the property.
If we are referring to the CDM regulations then, is this not work for a domestic client? Which still puts the onus on the principal contractor to adhere to the CDM regulations i.e. Put in place a suitable plan to manage the risks from Asbestos.
Just interested in your response rather than nit picking. I think this does highlight that the HSEs current guidance is very grey and that the reliance of relying on over regulations and guidance is ridiculous seeing as there has been ample chance for this type of guidance to be provided. They should be very clear and concise taking into consideration the type of stuff we are dealing with here? Again, this is where we currently are. There is a precedent in place (Rochefort Shugar), but there are various reasons why the Lettings Agency was pursued rather than the Landlord.
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I have previously stated that domestic properties are a difficult area to manage whether they be LA, Housing Associations or individual tenants. Clearly in the case of the latter they cannot be expected to have the esoteric knowledge of larger organisations. The law does not sufficiently domestic dwellings and therefore you have to pick your way through the legislation according to the circumstances you find.
Lisa, is correct in that a domestic property in effect becomes a workplace once you send in employees where the duties of HSWA s2&3 will apply, as will other legislation. In difficult scenarios, I suggest individual domestic dwellings come into that category, one can only do what is reasonably practicable, especially in the absence of any clear prescriptive guidance.
Identifying who is the client is the primary concern, unless the client is the owner of the domestic property (Old Mrs Betts) in which case there is nowhere else to go. The contractor can then only apply the duties pursuant to an employer. If there is a letting agency involved or some other landlord, then I suggest they are the 'Client' and they should carry the burden which goes with being a client. Which, for the record, becomes a commercial activity and not a domestic property pursuant to CDM Regs.
Just my opinion, I am happy to be corrected.
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Rank: Super forum user
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This is where I do agree. The letting agent would be the client theoretically anyway as there is a commercial element involved.
Nick - This goes back to one of the points I have made. The owner of the property would not be responsible for the survey. It would be the business that employed the contractor to carry out the work (the letting agency). As you have rightly referred to the Rochefort Shugar case whereby the risks where not mitigated prior to the employee being put at risk. However, this case was the letting agency directly employing the handyman rather than the contractor.
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I don't disagree with either Lisa or Ray, and this is what I was alluding to at #6. However, while it is clear that a domestic property may very well become a workplace, it doesn't necessarily follow that it ceases to remain a domestic property. Herein to some extent lies the problem in that although some duties under CAR may not apply, other statutory duties, as others including myself have mentioned, almost certainly will. Surely it is not beyond the wit of the HSE to have foreseen this and provide some sensible, pragmatic advise or guidance?
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Think we are all in total agreement with that Canopener.
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An interesting string of posts - of some interest to me as we regularly do work in domestic premises.
Local authority/housing association is generally not a problem and requests for Asbestos information is usually forthcoming - some is very very good and comprehensive.
The bigger problem is Private dwellings where the householder will understandably have no idea what materials are present. It seems to me - and i'll be corrected - that regulation 4 (duty to manage in non domestic premises) will not apply but other regulations within CAR 2012 will still apply in domestic premises to the employer (ie the contractor doing the work) starting with 5 and 6 Identification and Risk Assessment and others besides.
It seems to me therefore that prior to disturbing unseen areas - under floors for instance then a survey is required to satisfy reg 5 and to inform reg 6. For some works in domestic premises this could mean a local (just that area) refurb/demolition survey.
Asbestos experts please correct me if I am wrong
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Phil
In the absence of any explicit guidance in this area I'm not sure there are any right and wrongs. Would a gas fitter repairing a boiler ensure an asbestos survey is undertaken before doing any work? Of course not.
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Really interesting discussion, made a little more pointed by the fact that I'm a landlord too, with a fully managed property.
Ray - from working with our maintenance chaps here, I'm 100% certain that they would jump up and down loudly if they arrived at a property with any possible ACM's that they came across, but as you state, no, they wouldn't expect to see an asbestos survey in place first.
Hmmm....am now sitting wondering whether I should have an asbestos survey done whether the law expects me to or not.
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I think Phil has picked up on the other angle in post 24.
Reg 5 CAR places the duty on the employer / SE to know what they are playing with. They can discharge that duty in a number of ways - typically by asking the CDM Client to provide information or the CAR Duty holder. If there is no other duty holder then they themselves have to find out.
So where there is a commercial client then the client should have already found out the information... in a genuine domestic situation then this in the ideal world we all live in should be wrapped up in the price for the work to the client.
In the domestic building with a private individual trying to earn a bit on the side as a landlord then my view is very simplistic- under HSW - work is for profit or gain - if you let a house / flat you are very rarely doing it for love....... I can remember getting excited with landlords in the student flat sector about roofing works and none of the rest of the team I worked in at HSE seemed to think that they were not duty holders.
Kind regards
Bruce
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Quite a tangled thread this!
If I may offer a tuppence worth (and others can add the case law).
Landlords an letting agents etc may in the course of their undertaking engage contractors to undertake work. Law is well established to confirm that, within the context of that undertaking, those who engage others to undertake work on their behalf owe that party a duty of care. They must take reasonable steps to determine and mitigate the risk. The Health and Safety at Work etc Act covers this and also the duty to ensure competent appointment - hence also reasonable enquiry to ensure Reg 10 awareness training.
This principle of "undertaking" doesn't apply to the context of domestic tenants or owner/occupiers.
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Ron, et al,
In the commercial world the duties of HSWA, CAR, CDM and so on, are relatively clear. The waters get muddied where there is no Client, PC, etc. I believe the HSE are aware of the difficulties associated with private dwellings and therfore do not get involved unless there is a degree of recklessness. That of course is not very helpful to those who are trying to keep on the straight and narrow. Indeed, I believe that old chesnut 'reasonably practicable' applies. No one really understands what RP means or how it works in practice, including the regulators - LOL!
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Yes Ray, and in the absence of ACoP the HSE have nothing to go on - ultimately only a Court can decide what is "reasonable" in the circumstances.
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