Key takeaway: If you have any obligation — by contract, tenancy or control — for the maintenance or repair of non-domestic premises built before 2000, you are almost certainly a dutyholder under Regulation 4 of the Control of Asbestos Regulations 2012. This places a legal duty on you to manage asbestos-containing materials. Failure to comply is a criminal offence carrying unlimited fines and up to two years imprisonment. Similar penalties apply for fire safety and Legionella non-compliance — read our guides to the Responsible Person under the Fire Safety Order and L8 ACOP Legionella compliance.

Why Asbestos Management Matters

Asbestos was the most widely used construction material in the UK throughout the mid-twentieth century. It was used in ceiling tiles, floor tiles, pipe lagging, insulating board, roofing materials, textured coatings, fire doors and hundreds of other building products. Although its import and use was fully banned in the UK in 1999, it remains present in a very large number of commercial buildings constructed before that date.

When asbestos-containing materials are disturbed — during maintenance, refurbishment or renovation work — fibres are released into the air. Inhalation of those fibres causes mesothelioma, asbestosis and lung cancer. There is no safe level of exposure. According to the HSE, around 5,000 people die every year in the UK from asbestos-related diseases — more than are killed on the roads.

The legal framework for managing asbestos in buildings is the Control of Asbestos Regulations 2012. At its core is Regulation 4 — the duty to manage asbestos in non-domestic premises.

The Legal Framework

The primary legislation is the Control of Asbestos Regulations 2012 (SI 2012/632), which came into force on 6 April 2012. It consolidates and updates the previous Control of Asbestos Regulations 2006. The primary legislation is underpinned by:

Who is the Dutyholder Under Regulation 4?

Regulation 4(1) of the Control of Asbestos Regulations 2012 defines the dutyholder as:

• Every person who has, by virtue of a contract or tenancy, an obligation of any extent in relation to the maintenance or repair of non-domestic premises or any means of access or egress to or from those premises; or
• In relation to any part of non-domestic premises where there is no such contract or tenancy, every person who has, to any extent, control of that part of those non-domestic premises or any means of access or egress to or from those premises.

In practice this means the dutyholder will typically be one or more of the following:

• The building owner — where no separate maintenance obligation exists by contract or tenancy
• The landlord — where a lease places maintenance and repair obligations on the landlord for common parts
• The tenant — where a full repairing lease places maintenance obligations on the occupying tenant
• The managing agent — where control of maintenance has been passed to an agent by contract
• The employer or facilities manager — where they have control of the premises

Where there is more than one dutyholder — for example in a multi-occupied building — Regulation 4(1) states that the relative contribution to compliance by each dutyholder is determined by the nature and extent of their maintenance and repair obligation. Regulation 4(2) requires every person to cooperate with the dutyholder so far as is necessary to enable compliance.

Which Buildings Are Affected?

The duty to manage applies to all non-domestic premises where asbestos-containing materials are or may be present. As asbestos use was banned in 1999, any non-domestic building constructed before 2000 must be treated as potentially containing asbestos unless there is strong evidence to the contrary.

Regulation 4(4)(b) specifically states that the condition of any asbestos which is or has been assumed to be present must be considered. The presumption is therefore one of presence — dutyholders must presume materials contain asbestos unless there is strong evidence that they do not. This is a critical point that many dutyholders misunderstand.

What Must the Dutyholder Do? — The Core Duties Under Regulation 4

Regulation 4 of the Control of Asbestos Regulations 2012 sets out the following specific duties:

1. Carry Out a Suitable and Sufficient Assessment — Regulation 4(3)

The dutyholder must ensure that a suitable and sufficient assessment is carried out as to whether asbestos is or is liable to be present in the premises. Under Regulation 4(5), the dutyholder must ensure that:

• Account is taken of building plans or other relevant information and of the age of the premises
• An inspection is made of those parts of the premises which are reasonably accessible

In practice this means commissioning an asbestos management survey of the premises. The management survey is the standard survey required for occupied premises to locate, as far as reasonably practicable, the presence and extent of any suspected asbestos-containing materials that could be damaged or disturbed during normal occupancy and maintenance.

Under Regulation 4(7), the conclusions of the assessment and every review must be recorded.

2. Management Survey vs Refurbishment Survey — Understanding the Difference

HSE guidance HSG264 defines two main types of asbestos survey. Understanding the difference is essential for dutyholders:

3. Prepare and Maintain an Asbestos Register and Management Plan — Regulation 4(8)

Where the assessment shows that asbestos is or is liable to be present, Regulation 4(8) requires the dutyholder to ensure that:

• A determination of the risk from that asbestos is made
• A written plan identifying those parts of the premises concerned is prepared — this is the asbestos register
• The measures to be taken for managing the risk are specified in the written plan — this is the asbestos management plan

Under Regulation 4(9), the measures specified in the plan must include adequate measures for:

• Monitoring the condition of any asbestos or suspected asbestos-containing materials — Regulation 4(9)(a)
• Ensuring asbestos is properly maintained or where necessary safely removed — Regulation 4(9)(b)
• Providing information about the location and condition of any asbestos to every person liable to disturb it, and making that information available to the emergency services — Regulation 4(9)(c)

4. Implement, Monitor and Review the Management Plan — Regulation 4(10)

Under Regulation 4(10), the dutyholder must ensure that:

• The plan is reviewed and revised at regular intervals, and without delay if there is reason to suspect the plan is no longer valid or there has been a significant change to the premises — Regulation 4(10)(a)
• The measures specified in the plan are implemented — Regulation 4(10)(b)
• The measures taken to implement the plan are recorded — Regulation 4(10)(c)

The HSE recommends reviewing the asbestos management plan every 12 months as a minimum. Reviews should also be triggered by any significant change to the building — including refurbishment, change of use, damage to known asbestos-containing materials or change of dutyholder.

5. Review the Assessment — Regulation 4(6)

Under Regulation 4(6), the dutyholder must ensure that the assessment is reviewed without delay if there is reason to suspect that it is no longer valid, or if there has been a significant change in the premises to which the assessment relates. This includes any planned refurbishment, change to the building structure, or damage to a known or presumed asbestos-containing material.

What Must the Asbestos Register Contain?

The asbestos register is the written record of the location and condition of all known or presumed asbestos-containing materials in the premises. It should contain:

• The location of each identified or presumed asbestos-containing material — referenced to floor plans where possible
• The type of material (e.g. insulating board, textured coating, floor tiles, pipe lagging)
• The type of asbestos where known (e.g. chrysotile, amosite, crocidolite)
• The extent and surface area of the material
• The current condition — assessed using a standard condition scoring system
• The risk priority — based on condition, accessibility and likelihood of disturbance
• The recommended action — manage in situ, repair, encapsulate or remove
• Any materials presumed to contain asbestos where no sample has been taken

The register must be readily accessible and must be made available to anyone liable to disturb asbestos-containing materials — including maintenance contractors, tradespeople and the emergency services. This is a common area of non-compliance — dutyholders who have a register but fail to share it with contractors before work begins are still in breach of Regulation 4(9)(c).

Common Compliance Failures

In FM compliance audits, the most common asbestos management failures we encounter are:

• No survey carried out — the dutyholder is unaware of the legal obligation or assumes the building doesn’t contain asbestos
• Outdated survey — a survey was carried out years ago but has not been reviewed following refurbishment or damage
• Register not shared with contractors — contractors carry out maintenance work without being informed of asbestos locations — the most common route to exposure
• Management plan not implemented — a plan exists on paper but condition monitoring is not being carried out
• No refurbishment survey before works — a management survey is wrongly used as the basis for refurbishment work
• Presumed materials not recorded — the register only shows confirmed materials, not those presumed to contain asbestos

What Are the Consequences of Non-Compliance?

Non-compliance with Regulation 4 of the Control of Asbestos Regulations 2012 is a criminal offence. Enforcement is carried out by the HSE. Consequences include:

• Improvement Notices requiring specific remedial action
• Prohibition Notices restricting use of the premises or specific areas
• Prosecution — unlimited fines on conviction
• Imprisonment of up to two years for individuals
• Civil claims from anyone who develops an asbestos-related disease as a result of exposure on the premises

The long latency period of asbestos-related diseases — mesothelioma can take 20 to 50 years to develop after exposure — means that a failure to manage asbestos today may not result in illness or prosecution for decades. This does not diminish the legal duty or the moral responsibility. For a complete overview of all your statutory duties as a building owner, see our UK statutory compliance guide.

Summary — Dutyholder Obligations Checklist

All regulation references are to the Control of Asbestos Regulations 2012 (SI 2012/632), available at legislation.gov.uk. Guidance references are to HSE HSG264 — Asbestos: The Survey Guide, and HSE ACOP L143 (4th edition).

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Related guides

• What the Responsible Person must do under the Fire Safety Order
• EICR for commercial premises — frequency and remedial action
• UK statutory compliance — the complete guide