The long awaited publication ‘Asbestos: The Survey Guide HSG264′ has now been published. After spending some time digesting the content of the document I have, as promised at the recent NHMF conference, produced an initial assessment which considers some of the key changes and the impact they will have on Registered Social Landlords (RSL’s).

The document is no longer part of the MDHS (Methods of Determination of Hazard Substances) range of documents and instead is within the HSG (Health and Safety Guidance) group of documents.

Documents within the HSG range are targeted at both professionals and also those employing such professionals. They represent best practice in terms of guidance and as with all documents of this nature will require case law to determine the level of application.

This document differs considerably from the old MDHS100 in a number of key ways. It is more prescriptive in terms of the role the client has to play in the survey process, along with clearly setting out the expectations on the asbestos surveyor and appropriate levels of competence. We have seen the expected changes in terminology introduced so, the Type 1 and 2 survey are now replaced with the ‘Management Survey’ and the Type 3 survey is replaced with ‘Refurbishment and Demolition Survey’.

The document establishes the levels of compliance that should be achieved by RSL’s. In many respects, this is the document that the original MDHS100 should have been. More importantly, for those who attended the NHMF conference, the document clearly sets out best practice for housing associations and other social housing providers.

It is important to note that prosecutions for asbestos related offences are generally brought under the Sections 2, 3 or 4 of the Health and Safety at Work Act 1974 or the Control of Asbestos Regulations 2006. Neither of these regulations can be applied directly to social housing unless work related activities are taking place. In other incidences where tenant exposure has occurred action has been undertaken through the Management of Health & Safety at Work Regulations 1999: for example, where an asbestos incident occurs as a result of contractor activities or the activities result in the exposure of staff or tenants. This document steps beyond these requirements and it will be interesting to see how the case law will develop.

At this time, some confusion exists regarding the status of residential properties when void including Local Authority and Housing Associations stock but also private sector residential dwellings. The suggestion being that once the property is empty it is no longer classified as a residential dwelling and hence becomes encompassed within the Duty to Manage. The Royal Institution of Chartered Surveyors is currently seeking a legal interpretation.

Two pages of the HSG264 are set aside for residential dwellings and these make reference to Management Surveys and Refurbishment Surveys. Many RSL’s have undertaken inspections in common areas of blocks but HSG264 takes this a step further and establishes parameters for collecting housing related data.

In short, the guide sets out the steps that an Registered Social Landlord (RSL) should follow. In the first instance, a desktop evaluation of the stock should be undertaken to assess the commonality of the stock. Similar properties, based upon design, construction and age, can be placed into archetypal groups for further consideration. It is important to note that the number of archetypes will, in many instances, be far higher than those used for gathering information on a typical asset / stock survey as the selection will need to allow for a wider variability in design.

So where a traditional stock condition survey may consider one dwelling within a block it may be necessary for the asbestos survey to consider more units to allow for factors such as: number of bedrooms, those with roof spaces, other factors such as properties adjacent to bin stores being more likely to have added fire protection.

The guidance has been written in such a way that sufficient inspections need to be undertaken to ensure that variability in asbestos use has been established.

The guidance states:

“exact sampling ratios cannot be specified, as the proportion will depend on the variability of housing stock. A proportion should be surveyed until the results demonstrate as far as reasonably practicable that there is consistency in the range of ACMs in the property type”. HSG264 Published 2010

This information can be enhanced by data from other more invasive surveys but the majority of the data will be derived from Management surveys (formerly Type 1 & Type 2 surveys). These can be used as the basis for routine maintenance,  if appropriately performed. This will need to be supported with appropriate asbestos awareness strategies and contractor training.

The opportunity to provide guidance as to what to do next has not been taken up within the document and leaves a number of key questions to be answered. For example, do you extrapolate the data from surveyed premises to other properties of the type? If so, what caveats should go with the data? How do you extrapolate the data if you have found large variances in the archetypes or asbestos within the archetypes or does this mean you survey all of the properties?

Importantly, for those that manage tenanted properties, the thorny question of telling tenants about the asbestos or potential asbestos within the property has not been addressed. Our experience with this is mixed but overall the conveyance of information to tenants is poor.

It is difficult to predict what this may lead to but it is likely, that at some point in the future, we will see a legal claim lodged on the basis that an RSL knew about the presence of asbestos, had told its contractors but not its tenant. This takes on  new meaning in light of the Willmore v Knowsley BC case.

HSG264 is specific in terms of the guidance that is to be adopted for refurbishment programmes, such as those associated with Decent Homes. Where kitchen and bathroom programmes exist, Refurbishment surveys will be necessary. These surveys are effectively the old Type 3 invasive survey. In many instances, this is far more than is currently being undertaken on many Decent Homes programmes but it does not consider the difficulties of undertaking an invasive asbestos inspection with a tenant in situ.

Both these strategies of data collection require that

• “adequate asbestos training of trades people (eg to cover awareness, including identification) and work procedures;
• arrangements must be in place to ensure that asbestos registers or records are checked before work commences and there are procedures for dealing with any suspect/suspicious/unknown material, ie stop work, check material etc;
• adequate supervision to ensure procedures are implemented and followed”  HSG 262 Published 2010.

In addition to redefining the types of asbestos survey and introducing guidance for RSL’s, the document has defined  to clients the need to ensure that those undertaking the inspections / surveys are competent and have in place appropriate quality assurance procedures.

“HSE strongly recommends the use of accredited or certificated surveyors for asbestos surveys.

The dutyholder should not appoint or instruct an independent surveyor to carry out a survey unless the surveyor is competent.” HSG 264 Published 2010

Accreditation for asbestos surveys is currently outsourced by the Health and Safety Executive (HSE) to the United Kingdom Accreditation Service (UKAS).At present, approximately 130 organisations are Accredited to undertake asbestos surveys under ISO Standard 17020.

UKAS has also authorized two personal certifications schemes. The NIACS scheme was a joint venture between the Royal Institution of Chartered Surveyors (RICS) and the Asbestos Removal Contractors Association (ARCA). This scheme certificated approximately 50 individuals. (This scheme has now closed due to lack of support). The ABICS (Asbestos Building Inspectors Certification Scheme) operated by the British Occupational Hygiene Society (BOHS) has yet to certificate any individuals.

Many asbestos survey providers will claim to be BOHS certificated. BOHS do not certificate individuals. They administer the P402 examination which is not a measure of competence and some organisations will claim they use UKAS partners for undertaking sample analysis. Neither of these claims will ensure the organisation is competent and it is necessary for clients, if they are using non-UKAS surveying organisations, to ensure the organisation can demonstrate competence. The easiest route to ensuring this is to employ an organisation Accredited to ISO17020.

The internet is awash with organisations professing or suggesting they are UKAS Accredited for asbestos surveys. Some hold UKAS Accreditation but not for asbestos surveys and others are simply misleading. UKAS publish a list of Accredited asbestos surveying organisations and this can be found here. Thames Laboratories are a UKAS Accredited organisation.

A Google search whilst writing this article using the term ‘UKAS Inspection Bodies’ reveals that all of the pay per click advertisements are from non-accredited organisations offering asbestos surveys, so the importance of checking the UKAS list cannot be stressed enough.

In the social housing sector this issue of competence may mean that it is no longer viable to bundle asbestos surveys in with stock condition assessments.

Since the publication of the HSG264 this question of competence has highlighted a potential issue concerning insurance. To date insurance for individuals and non-accredited organisations has been on the basis that qualifications (a P402) and experience were sufficient.

The new guidance sets out a range of additional requirements to ensure competence that had not been considered by insurers such as auditing 5% of work and having in place management procedures. All of which will be difficult for an individual to demonstrate.

The net result of this is that we have become aware that insurers have instructed individual surveyors to cease undertaking asbestos surveys until they can demonstrate they fulfill all of the requirements of the new guidance.

For those who employ in-house teams this will be an issue as it will be necessary for these teams to be able to demonstrate the same level of competence as certificated individuals or Accredited organisations. This will be an issue for external contractors who are employing 3^rd party surveyors, an example of this is where Decent homes contractors are sub-contracting asbestos surveys.

In the coming months, as the new guidance is analysed in detail, it will be necessary to amend working practices. If you would like to discuss the issues raised in this document in more detail or would like a member of our staff to discuss the impact of these changes on your organisation please feel free to Contact me, John Richards, Managing Director, Thames Laboratories Ltd

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