There are certain aspects of asbestos management in UK buildings that often cause a lot of confusion. One common misconception is that responsibility for managing asbestos-containing materials (ACMs) at a particular premises must surely always sit with a single person, role, or organisation.
The reality is that such responsibility for asbestos does not always belong to one individual or entity. In multi-site estates and multi-occupied buildings, as are common across the NHS, housing associations, and the education sector, the legal “duty to manage” asbestos can be shared, partially delegated, or disputed.
So, in this article, we will set out to bring clarity to this complexity. This will include outlining who counts as the “dutyholder” under the Control of Asbestos Regulations 2012 (CAR 2012), as well as the process for determining responsibility, and what is required in practice.
What the law actually says about asbestos responsibility
Regulation 4 of CAR 2012 places the “duty to manage” asbestos on the person or organisation responsible (to any extent) for the maintenance or repair of non-domestic premises (or the means of access or egress to them).
This individual or entity is referred to as the “dutyholder”. There are various aspects of the “duty to manage” that dutyholders need to be aware of, such as:
- The presumption rule. Materials in a non-domestic property must be presumed to contain asbestos, unless there is strong evidence of this not being the case.
- Which premises are in scope of the “duty to manage”. All non-domestic buildings are subject to the requirements of CAR 2012, Regulation 4. Also covered by this legislation are the common parts of multi-occupancy domestic buildings, encompassing corridors, stairwells, plant rooms, and roof spaces. The duty does not apply to the insides of private flats.
- The significance of the year 2000. The use of all forms of asbestos in the UK was finally banned in late 1999. This means that buildings constructed or refurbished prior to 2000 are the main focus of CAR 2012’s “duty to manage” asbestos. Premises dating to 2000 onwards are not automatically exempt from these requirements; verification is still advisable in some cases.
- The Approved Code of Practice (ACOP). The Health and Safety Executive (HSE)’s presently applicable ACOP and guidance document, focusing on the practicalities of Managing and working with asbestos in the UK, was issued in 2013 under the L143 series code. It replaced the now-withdrawn L127 ACOP.
Who counts as the dutyholder?
The dutyholder under CAR 2012 is typically the party with maintenance or repair obligations under contract, tenancy, or control.
Common examples include:
- Building owners, where they retain maintenance responsibility.
- Landlords, for commercial as well as residential properties (although in the case of the latter building type, the “duty to manage” asbestos is limited to common parts and does not cover private flats).
- Managing agents or facilities management (FM), where contracts or tenancy arrangements place maintenance obligations on them.
- Employers, where they control the premises.
On top of this, there are important sector-specific nuances:
- In the NHS and broader healthcare sector, the employing trust is typically the dutyholder for its hospitals and clinical buildings. It is estates teams that often carry practical accountability.
- Local authorities act as dutyholders for community schools, civic buildings, and the common parts of social housing. In some cases, budget delegation arrangements with schools can create shared responsibility.
- When it comes to academies and free schools, the duty is held by the academy trust.
- For the “duty to manage” asbestos in foundation and voluntary-aided schools, school governors are typically responsible.
- Housing associations manage the duty for their pre-2000 stock. This can be a major practical challenge, in light of the volume and age of many social housing estates.
- The situation with commercial property can be complex. Lease agreements determine whether it is the landlord or tenant for a particular building that holds the duty. Ambiguity is common, and neither party should simply assume that “the other party is dealing with asbestos”.
It is critical for dutyholders to be aware that even where they commission a competent specialist or FM provider to undertake surveys or manage records for them, ultimate legal accountability will stay with the dutyholder.
What does the duty to manage actually require?
The “duty to manage” asbestos at a particular site translates into these practical and ongoing actions:
- Taking reasonable steps to identify whether ACMs are present in the building. The dutyholder will typically accomplish this by commissioning the right type of asbestos survey for the given situation.
- Maintaining a live asbestos register. This will need to detail the location, type, and condition of all confirmed and presumed ACMs in the property.
- Developing and implementing an asbestos management plan (AMP). This is a necessarily dynamic document, subject to change as circumstances on-site evolve, instead of being treated as a static publication or “one-off” exercise.
- Making the asbestos register and AMP accessible to anyone who might conceivably disturb the building fabric. It is typically contractors who most urgently need to be shown this information before they begin work on-site.
- Periodically reviewing and updating records. It will be particularly important to do this after works, re-inspections, or changes in how the building is used.
- Arranging appropriate training for staff who have specific roles in the delivery of the AMP.
The asbestos register must be held on-site and accessible, instead of being locked away in a distant head office.
When responsibility is shared and why that creates risk
In multi-occupied buildings, there can often be a division in responsibility. This may entail the landlord being responsible for common parts of the property, and tenants for the specific areas of the premises they occupy.
However, in cases where this may be the case, lease agreements need to communicate it explicitly. Vagueness can lead to gaps in asbestos compliance.
Where multiple dutyholders exist for a given property, all parties have a legal duty to cooperate and share information. Non-dutyholders who hold information about ACMs in the building, such as former occupants, previous surveyors, and contractors, are also legally obliged to cooperate with the present dutyholder.
A common point of failure is when organisations with large or mixed-tenure estates assume a third party is managing the “duty to manage” asbestos. This can easily lead to a situation where no one is tracking whether the “duty to manage” requirements are actually being fulfilled.
Professional asbestos management services can help tackle this lack of oversight. By enlisting our own solutions and expertise, you can ensure robust systems are in place to comply with the “duty to manage” at your premises, backed by ongoing support.
What happens if the duty is not met?
The HSE and local authorities have strong enforcement powers that they can bring to bear if they discover instances of non-compliance with the “duty to manage” asbestos. These include improvement notices, prohibition notices, and criminal prosecution.
Where serious failings occur, liability may extend beyond the organisation itself. Individual dutyholders and senior responsible persons can face personal accountability for violations of health and safety law.
Nor are the consequences of inadequate asbestos management purely legal ones. Even more than a quarter-century after the final ban on asbestos use was imposed in the UK, this fibrous silicate mineral remains a significant occupational health hazard. Conditions linked to prior asbestos exposure, such as mesothelioma and asbestos-related lung cancer, still claim thousands of lives each year.
The “duty to manage” asbestos exists because the risk posed by undisturbed ACMs, still embedded in the fabric of many buildings up and down the UK, is real and ongoing.
The effective management of asbestos across the country’s built environment is ultimately about preventing exposure and protecting the people who work in, maintain, and occupy the buildings where ACMs may be present.
Conclusion: clarifying responsibility is a vital step for protecting your people
Over many years of working with complex estates across the public and private sectors, including now as a senior asbestos consultant, we have seen what happens when dutyholder responsibility is unclear in relation to such sites.
When there is no single person or team who “owns” the full picture, compliance gaps can easily appear. This can lead to escalated risks and diluted accountability.
Here at Assets & Compliance Managed Services (ACMS), we provide managed asbestos services that give clarity, confidence, and control to dutyholders.
If you’re unsure who holds the “duty to manage” asbestos on your own sites, or you’re concerned that your present arrangements are insufficiently robust, contact the ACMS team today. We’ll be pleased to help you cut through the complexity, so that you can better protect your people, organisation, and reputation.
