Hi all, My company has had an issue with a client over the payment of asbestos surveys. The two asbestos survey reports provided to us were dated (14/06/2006) and (19/05/2009) these were carried out under the old HSE requirements (MDHS 100), to which as a due diligent contractor we have worked to the current legislation and guidance for asbestos (HSG264- January 2010) for works in non-domestic premises. The two reports provided were the old type 2 surveys which under the new guidance are classified as a management survey -(akin to the Type 2 survey)- designed to locate, as far as reasonably practicable, the presence and extent of ACM’s, so that the Duty holder can prepare a plan for the management of asbestos. Under the new guidance, i thought that we (and our client) are legally required to carry out a ‘Refurbishment / demolition survey (akin to the Type 3 survey) – which is a much more intrusive survey, designed to locate all the ACM’s so they can be removed before the refurbishment (whether small scale or a large project) or demolition takes place. I am correct in my above assumptions We did advise our client in writting before we undertook the surveys, but as usual the did not respond before we undertook them (tight programme). Be glad of any advice from experienced safety professionals.

Additional survey may be required only where the work is of an intrusive nature. By this time your Client should have consolidated that Survey Information within an appropriate Asbestos Risk Register. That Risk Register should acknoweldge its own limitations. Whilst you mention 2 Survey Reports you do not tell us the scope or extent of them. It is conceivable that there is sufficient information therein for the scope of your work without the need for additional survey. Only you know the content and the scope of intended work, in essence only you (in conjunction with your client) are in a position to determine whether additional survey is required. Both the scope of work and the design will have a significant bearing on this. ACM disturbance can on occasion be avoided by appropriate design choices.

How about formulating your response around reg 4 of the CAR 2006, underpinning it with the findings of the recent Marks and Spencer case with regard to dutyholder's responsibilities?

If you are to work on a property in a manner that can be classed as refurbishment or demolition then you are correct. A fully intrusive survey is required of the areas affected by such works. Note that this does not necessarily mean the WHOLE premises. You really have failed to make your client fully aware of what you are doing but equally your client is also failing in his duties to assess work on his premises so both need to get a compromise hammered out. As far as the law is concerned you have performed in a reasonably correct manner but you are likely to be left with the costs as David suggests Bob

Bottom line then is that you had to have this work done to enable you to comply with Regulation 5 of CAR. That same duty applies to your Client, who presumably is miffed at request for retrospective payment. Hindsight (that wonderful thing) suggests of course that you should have advised him of this necessary work before proceeding. Not particularly helpful I know, but if you hadn't he would be in breach of CAR06!

Just came across this: http://www.hse.gov.uk/press/2012/coi-se-3101.htm# A prosecution for breach of Reg5 of CAR. Note that there was no need to determine whether ACMs were present to determine breach of the Regs. This could have been you and/or your Client, Hayes41529 had you not done the correct thing.