This is something we see every day. Despite longstanding legislation that is not difficult to comply with (by simply appointing a competent specialist or Health and Safety professional who will advise you on your legal obligations). But there are still many companies and many Duty Holders who are not aware of their responsibilities.
Others are aware of them and disregard them, but we will never reach those.
So, if you manage a property, own or lease a property from which you do business, or ever have anyone working in your home, then this blog is for you.
What is a Duty Holder for asbestos and legionella?
An owner or operator of a commercial building. This includes facilities managers, franchisees, and contractors. Homeowners also have similar duties if people such as builders and trades professionals are working in their homes.
UK health and safety law places duties on a variety of people. Primary responsibilities are placed on those who create and/or have the greatest control of the risks associated with a particular activity. Those who create the risks at the workplace are responsible for controlling them.
What is the Duty Holder’s responsibility?
This primary duty of care requires Duty Holders to ensure health and safety, so far as is reasonably practicable, by eliminating risks to health and safety. If it is not reasonably practicable to eliminate, then risks must be minimised so far as is reasonably practicable.
This applies while workers are at work in the business or undertaking. For homeowners, this applies whenever someone, such as a tradesperson, is working in their property.
Who is the Duty Holder for asbestos?
In non-domestic premises, the Duty Holder is the owner or the person or organisation that has clear responsibility for the maintenance or repair of the premises. They would be given this responsibility, for example 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 that 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.
What should asbestos Duty Holders do?
The Health and Safety Executive (HSE) documents ‘ACOP L143 Managing and Working with Asbestos’ and ‘A Comprehensive Guide to Managing Asbestos in Premises’ outline extensive guidance for those with a duty to manage the risks from asbestos-containing materials (ACMs) in premises, e.g. building owners, tenants, and anyone with legal responsibilities for workplaces.
Who is the Duty Holder for legionella at your business?
In the UK, all employers must be aware of the risks from legionella in their workplace and take appropriate actions to manage them.
It can be a person, i.e. the business owner, but it could also be the company. This is known as a virtual person, i.e. a corporate body.
What should a legionella Duty Holder do?
The HSE documents ‘ACOP L8 – Legionnaires’ Disease the Control of Legionella Bacteria in Water Systems’ and ‘HSG274 – Legionnaires’ Disease Technical Guidance’ should be your guidelines to help in ensuring that you cover all of your duties as the Duty Holder.
It should be noted however that the role of the Duty Holder does not merely apply to the control of legionella and water management programmes. It applies in relation to other health and safety matters in businesses and places of work that are covered by the Health and Safety Executive or Care Quality Commission as the safety regulators.
Awareness amongst businesses
We have seen a lack of compliance in surprising places. This includes highly regulated industries like healthcare and housing and hospitality, which, being geared up for lots of visitors, you would expect to be better.
A recent example for us included a housing association and a major building contractor, where major refurbishment work had been allowed to commence on a renovation that required an Asbestos Refurbishment Survey. The survey present on site was an old Asbestos Management Survey and many contractors had undertaken works on this building over previous months. This included a soft strip of the building, demolition and installation of a new staircase, first fix re-wire, first fix plumbing, etc. Environmental Inspection’s client had raised concerns about suspect material in the ceiling void. Other trades had already undertaken works and they were all told that there was no asbestos present because there was nothing noted in the site asbestos survey document.
Investigations by Environmental Inspection confirmed asbestos cement was present and damaged in the roof void. It was confirmed that a Refurbishment Survey had been undertaken but was not on site and the roof void had not been surveyed as it was not in the scope of works, even though electricians, plumbers, cable installers, and insulation operatives had all been in the roof void undertaking works as part of the refurbishment project.
In the above case, our client operatives who had just undertaken their annual refresher asbestos awareness training identified a suspect asbestos product that was not identified in the report and stopped work until it was confirmed as safe to continue. They were aware of their responsibilities to themselves and others.
So, in major organisations and amongst building managers and people in housing and community buildings, we find a lack of awareness around asbestos and legionella compliance. Even amongst professionals, there is a misconception that a Management Survey, focused on one material in one particular location somehow gives a green light to renovate. We see this lack of awareness even amongst building supervisors, site supervisors, and health and safety representatives!
Specific actions that should have been taken in this example
There should have been an Asbestos Refurbishment Survey on site. The areas which were not covered should never have been entered. So, it is clear the survey was not reviewed by the health and safety managers undertaking the site risk assessments, the contracts manager making up the site file, or even the site supervisor reviewing the information before contractors started on site.
All contractors undertaking works should have been made aware of the asbestos survey and signed to say they had read and made sure there was no asbestos in their work area. Again, this is difficult if it is not even present on site and would constitute a probation notice if the HSE had attended site to undertake a health and safety audit on the Duty Holder and building firm.
If this is you and your organisation, feel free to reach out. We will give you the advice you need, in confidence.
How to ensure compliance
If you own or manage a building that is used by anyone else, there are two things that you should do:
- Get a basic understanding of asbestos and legionella issues by training.
- Appoint competent people to advise on what risk assessments / surveys you need now and what you need if any changes occur. For asbestos, this means at the point of any refurbishments being planned (unless your building was built after the year 2000) or if any known or potential asbestos becomes damaged. For legionella, it’s if there are any changes in the design of your water system or if any part of your water system goes unused for more than one week.
If you are presented with an asbestos survey, then you must check:
- What kind of survey is it?
- What was its scope?
- Does the scope match your proposed work?
If asbestos has previously been found and removed, how comprehensive was the removal? By this, we mean both in terms of coverage within the building and the quality of the job. It’s not uncommon for us to find asbestos debris, especially from previous strips, if not done correctly.
If you think this is just a precaution or a formality, then consider this: We have arrived at sites where door casings, walls, and ceilings have already been removed and revealed asbestos underneath.
One of the most common myths about legionella is the belief that a temperature check will be enough. This may or may not be the case, depending on the nature of the system, its complexity, and the number of outlets.
Many people don’t realise what the temperature needs to be. I’ve met professionals who think that 35 degrees is fine as ‘it’s just a nice temperature – not too hot and not too cold.’ In reality, it should be at least 50 degrees Celsius for hot water. Cold water should be below 20 degrees Celsius unless being mixed in a Thermostatic Mixing Valve (TMV).
Something people often miss is that to be safe, the water has to be at this temperature throughout the entire system.
If you are a building professional
If you work in any building profession or related trades, you should ensure that you understand enough about asbestos and legionella to know when a potential risk exists that requires the advice of a specialist.
We are not saying that you need to become an expert or be able to diagnose and advise clients on these issues. But there are straightforward awareness courses that allow you to acquire the knowledge to protect yourself, your staff or colleagues, clients, and the public.
Once you have this knowledge, then it should be included in all of your Risk Assessments and Method Statements (RAMs).
If you are a Duty Holder
Duty Holders often think that these issues are not for them to know. The Health and Safety Executive (HSE) does not accept this as an excuse. If you are managing a building, then you should know. Professional health and safety advice should be sought where necessary.
This applies to businesses of any size. There are no exceptions.
See details of our asbestos awareness training.
We are happy to advise anyone who is uncertain about their specific circumstances – just contact us.