Understanding the reasons behind the new L143

The new L143, incorporating L143 and the old L127

The two ACoPs have been updated and brought together to help employers find the information they need quickly and easily and understand how to protect their workers from the dangers of working with asbestos. The revised ACoP (L143) also provides better clarity on identifying dutyholders for non-domestic premises and the things they must do to comply with the ‘duty to manage’ asbestos (Regulation 4).

To understand why, until December 2013, there were two ACoPs for the Control of Asbestos Regulations (CAR) 2006 instead of a single ACoP for CAR 2012, it is necessary to look at the history of these codes, and of the legislation they support. 

At the 11th hour last year (20 December) CAR 2012 received ministerial approval for its own single L series document, L143, fusing relevant ACoP and guidance from the old L127 and L143.

The new ACoP has taken account of changes between CAR 2006 and CAR 2012. In particular, it reflects on the notification of non-licensed work with asbestos and the arrangements required for employee medical examinations and record keeping.

The new tables in L143 (2013) are a much clearer way of presenting guidance. Table 1 gives examples of work that do and do not normally require a licence. Though the double negative is confusing initially, the examples of work activities that are non-licensed but not normally classed as notifiable non-licensed work (NNLW) in table 2 are helpful when compared with the NNLW examples in table 3.

Table 4 helps employers to better understand their duties under CAR 2012 to employees and others, while table 5 explains arrangements in different types of domestic premises. Tenancy arrangements from L127 have been supplemented by two further examples and tabulated in table 6, while table 7 gives information on enforcing authorities.

The requirement to assess the presence of asbestos in premises is the same in CAR 2006 and CAR 2012. In CAR 2012 the requirement to review the assessment has changed only in that, instead of being reviewed “forthwith”, it must now be revisited “without delay” if there is any reason to suspect it is no longer valid or there has been a significant change to the premises.

But the ACoP makes a significant change to the emphasis put on this requirement. L127 asked only that the asbestos records “be reviewed and brought up to date every time it is known that something has changed that affects the risks from the material”, with no timescale.

Revised L143 demands more. As well as the requirement to update records when there are changes, paragraph 143 specifies: “As a minimum, the management plan, including records and drawings, should be reviewed every 12 months.”

In contrast, the requirement for checking the condition of asbestos has lost its prescriptive timescale. L127 advised: “As a minimum, the material should be checked every six to 12 months even if it is in good condition.” But the requirement that “any identified or suspected ACM must be inspected and its condition assessed periodically” has been upgraded from guidance to ACoP with the suggestion that the frequency of inspection will depend on location, activities and other “events or changes”. This is another example of a belated move to a risk based approach.

Requirements for training have also altered. The 2006 version of L143 included ACoP (para 147) that “refresher training should be given at least every year and should be appropriate to the role undertaken”.

Some asbestos training companies used this as grounds to convince organisations to buy a generic, off the shelf training course once a year, ignoring the guidance: “Refresher training should include reviewing where things have gone wrong and sharing good practice.”

The new ACoP removes the prescriptive time interval and clarifies who needs it most: “Asbestos awareness training should be given to employees whose work could foreseeably … expose them to asbestos ... to those workers in the refurbishment, maintenance and allied trades where it is foreseeable that ACMs may become exposed during their work.”

The guidance points out that “there is no legal requirement to repeat a formal refresher awareness training course every 12 months” and allows for appropriate methods of training, including asbestos e-learning and supervisor led safety talks.

Unscrupulous employers could use this revision as an opportunity to drop awareness training, but the best interpretation would be to stop buying generic courses and to base refresher training on how the asbestos management system works (and where it goes wrong) in your own organisation.

So does the new L143 meet the HSE claim? In terms of clarity, it has two points in favour: the summary boxes and the greater use of tables, and one point against: the unnavigable Regulation 4 guidance.

It does at last mean we have an up-to-date single ACoP to support CAR 2012, and the move towards a risk based approach should encourage better use of resources where they are needed rather than generic courses and cursory annual inspections.

As for the consolidation, while everyone had an opinion on the loss of the Management Regs. L21, no one seems bothered about the loss of L127. Perhaps it was such an obvious improvement that the only question is why it was not done years ago.

History

In 1983 we had the Asbestos Licensing Regulations, accompanied by the L11 A guide to the Asbestos Licensing Regulations. In 1987, the original Control of Asbestos at Work (CAW) Regulations were introduced.

The HSE published two codes: CoP 21 (later L27) The control of asbestos at work, which mirrored the regulation title, and also an overly specific CoP 3 (later L28): Work with asbestos insulation, asbestos coating and asbestos insulating board.

As understanding about the relative risks of, for example, textured coatings versus insulating board changed, the inflexibly named L28 was difficult to adapt. In the 2002 consultation document on changes to L27 and L28 there were so many uses of the phrase “this guidance is also relevant to L27” when referring to L28 that it seems odd the merger of these documents did not occur then. Instead, the fourth edition of L27 was given a name change to “Work with asbestos which does not normally require a licence.”

With the fractured guidance spread between L11, L27 and L28, there was no obvious home for new advice on the “duty to manage” introduced in Regulation 4 of CAW (2002), so yet another ACoP was introduced: L127 “The management of asbestos in non-domestic premises”.

The sensible consolidation of L11, L27 and L28 into L143 “Work with materials containing asbestos” did not occur until 2006, when the Asbestos Licensing Regulations, the Asbestos Prohibitions Regulations and the Control of Asbestos at Work Regulations were consolidated into the Control of Asbestos Regulations. A key change at this point was from the prescriptive requirements based on type of asbestos to an approach based on the risk of exposure. The Management of Health and Safety at Work Regulations had been introduced in 1992, and revised in 1999, so why had it taken until 2006 to adopt a risk based approach to asbestos? Negotiations over the Asbestos Worker Protection Directive may have caused the delay.

Having introduced L127 only in 2002 (for 2004 implementation) it seems no one felt able to get rid of it and give businesses just one ACoP for one regulation in 2006, so L127 had a second edition to line up with CAR 2006.

One argument for keeping the management advice in L127 separate from the “work with” advice in L143 was to have different documents for different audiences. Non-asbestos specialists need to know who is responsible and how to manage the process. Experts can be brought in to “work with asbestos” — to carry out surveys, to remove asbestos and to check the working environment afterwards. The dutyholder just needs to know when to get in experts, and how to tell whether they are doing the right thing. The problem was, in order to control the experts, non-specialists still needed to read both ACoPs, as well as HSG 227 a comprehensive guide to managing asbestos in premises.

In 2012, a new version of CAR was introduced, but HSG 227, L127 and L143 were not updated. Confused managers had to deal with references to documents that were no longer available, such as MDHS 100, and had to scrabble around the HSE website for advice on the changes from 2006 to 2012.