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Written by rosalind renshaw

A letting agent has been hit with £4,000 of fines and costs after a self-employed handyman was exposed to asbestos while carrying out work on a client’s property.

The case highlights health and safety legislation responsibilities for agents, in particular preparing risk assessments of properties and checking the competence of those who carry out maintenance jobs.
 
The handyman, who does not wish to be named, regularly carried out work on properties managed by agents Rochefort Shugar, a family-run firm in Cardiff.  

On October 15 last year, the handyman was sent to a domestic property to fix a leaking porch roof.


As he was removing a sheet of material from the underside panel of the damaged roof, he realised the insulation board contained asbestos. The sheet was broken during removal and the surrounding area was contaminated with asbestos debris.
 
The Health and Safety Executive, prosecuting, told Barry Magistrates’ Court the removal of the panel and the sweeping up and bagging of the debris would have resulted in a significant release of asbestos fibres into the air. 
 
The handyman wore two dust masks while removing the board, but did not undergo any decontamination procedures and was not wearing a protective, disposable suit. The court heard the fibres could have contaminated his hair, skin and clothing and may also have been inhaled.
 
The HSE investigation found the handyman had not been given any indication that asbestos was present in the property.

No risk assessment was carried out, and Rochefort Shugar made no attempt to ensure he was competent to identify or work with asbestos.
 
A licensed asbestos contractor was later called in to decontaminate the area.
 
Rochefort Shugar was found guilty of breaching Section 3(1) of the Health and Safety at Work Act 1974 and fined £1,500 with £2,500 costs.
 
HSE inspector Steve Richardson said: “There are specific rules and laws regarding hazardous substances like asbestos. If we do not enforce these laws, people’s health can be put at serious risk. Asbestos is a known carcinogen and should be treated with extreme caution.

“Those in charge of maintenance and repair of buildings must ensure work is carried out by competent tradesmen, and that consideration is given to the presence of hazards such as asbestos.”

Comments

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    Just spoken to HSE inspector involved and he confirmed THIS HAS NOTHING TO DO WITH ASBESTOS. In this case the issue was asbestos but it could be falling masonry or any other hazard.

    The issue was, exactly as Asbestos Chap said, a question about if the contractor chosen by the agent (but could have been a home owner according to HSE) was competent to do the job. The simple question was was checks did the agent do, answer none. The contractor himself showed his ignorance of the subject by cleaning up the asbestos, clearly not aware that this was not acceptable.

    Although the problem could have been electricity, gas, structural or asbestos, it would seem that the prudent course of action will be to ensure all contractor working on pre 2000 houses (or all houses for simplicity) have attended the half day asbestos awareness training. Then when you are asked what you did to make sure the contractor was competent you have a sound and reasonable answer. After all, unless you have some training in asbestos, would you even know if a particular job was likely to involve asbestos in an older house? Half the soffits in that house were ply wood (bowed from damp and so being replaced). If the contractor had been aware of the issue, then like I hope Industry observer did, he would have immediately ceased work and made the appropriate arrangements to have it cleared professionally.

    An interesting case showing how agents should be careful of the contractors they choose.

    They did not prosecute the contractor, but perhaps having breathed in the fibres he is at risk of a much higher penalty,

    • 09 November 2011 18:56 PM
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    Asbestos Chap, H&S Pro and Simon Thomas are all correct in terms of their echnical comments. I just wanted to look at the wider picture from the agent angle.

    Understandably there is indignation and why blame the agent – but we only had a summary and the result, not all of the evidence. Sadly these days in any dispute, breach or negligence etc situation the agent will be looked on as the professional who should know best or better and have the gift of second sight.

    I take the point about hidden hazards, but just to support what Asbestos Chap and H&S Pro have said, my house was built in 1987 and has a small porch type thing over the back door – two struts out, a small roof and above the back doorstep, a flat white panel. This had flaked and I assumed was emulsion paint so I went at it vigorously prepping it for more emulsion with a wire brush and sandpaper.

    Imagine my horror when a decorator giving me a quote said it might be asbestos. ANY PROPERTY BUILT PRE 1990 CAN HAVE IT SOMEWHERE IN ITS FABRIC.

    I deal with the legal side of lettings and am well aware of asbestos, blue and white, specialist licensed contractors, awareness training (can be done via SAFEcontractor for example) and so on. And my missus works for the City Council and in her job is also well aware of it.

    But we never thought.

    Point is given our knowledge and expertise (or at least awareness) compared to Joe Bloggs we should have done. So I assume should these agents according to this H&S prosecution. The agent should have considered it and simply flagged it up. If the handyman then said “ooer not me mister” fine then get someone in who will.

    Of course an agent cannot be expected to see hidden or unknown hazards – but he can be expected to suspect them and my guess is that is what sank them in this case. If you go to take on a property following Probate and it looks as though no work has been done there since the 1960’s don’t you suspect the electrics may need an overhaul before letting a new tenant play with the light switches?

    To all those expressing somewhat worryingly ill informed comments in this thread about risk assessment – yes I’m afraid that is exactly the duty on an agent instructing a contractor or indeed a member of staff to go to a property where there can be any suspicion of a possible hazard.
    I can only assume you have never heard of LACORS and above all The Regulatory Reform (Fire Safety) Order 2005 applies to all non-domestic premises in England and Wales, including the common parts of blocks of flats and houses in multiple occupation (HMOs).

    Under these Regs, the “responsible person” must carry out a fire safety risk assessment and implement and maintain a fire management plan. The law applies to you if you are deemed to be the “responsible person” and in a fully managed scenario you almost certainly will be.

    It’s tough and an unfair world – not helped by taking fees for work either, including perhaps 10% for handling this work?

    • 07 November 2011 10:51 AM
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    There's been a lot of 'outrage' on here. Let's just calm down a second and put things right.

    Firstly, asbestos is still killing, in an agonising way, 4000 people every year. Thats 4 times the number of people killed on the roads each year. Surely we've got to smarten up on this a bit.

    Secondly, in domestic properties that are being rented out, there is no requirement for the owner or agent to have an asbestos register etc like you do with a commercial property (what's called the 'duty to manage' regulation).

    However, if the agent is sending one of their contractors into a house to do work that disturbs the fabric of a building, where the building is of an age liable to contain asbestos (e.g. anything before the year 2000 when asbestos was banned), then they need to make sure the contractor is 'competent'. In this case, as a minimum, the contractor should have 'asbestos awareness training'.

    Rochefort Shugar was prosecuted becasue they did not ensure the contractor was competent. Think about it, would you consider sending in any old plumber into a house to fix the boiler? Or would you check to make sure he's gas safe? Would you send a man in to fix the lighting without making sure he was a qualified electricant. Of course you wouldn't. You'd make sure he was competent.

    If businesses appoint a contractor to do work for them, under employement law they are seen as their employees. They have duties to make sure they are competent, otherwise we end up like Rochefort Shugar who sent an incompetent person into someones house to spread asbestos fibres about, putting the tenants family at serious risk.

    It's simple: Make sure your contractors (and their subcontractors if need be) have asbestos awareness training, and they have a demonstrable system (e.g. written) to be able to identify if a material they need to work on is made from asbestos. If it is, and it is a licensable material, you will need to appoint licensed contractors. If the material is of the 'unlicensed' type, they can work on the material providing they have so-called Level 2 training for non-licensed work.

    Just ask your contractors these questions. If they don't tell you the right things, don't use them. Use someone else with these things in place. Watch how quickly they get themselves trained-up if they want your work.

    • 04 November 2011 13:37 PM
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    May I suggest to those that are saying that the handyman was self-employed and therefore not the responsibility of the letting agents re-read the article. Note they were charged with Section 3(1) of the health and safety at work etc act 1974 and then note that a company has the responsibility to protect the health and safety of persons not in their employ. Say for example an explosion at an industrial site kills twenty people who live nearby then what you are saying is that unless they were direct employees it's nothing to do with the employer who's processes on those premises caused those deaths!

    • 03 November 2011 19:59 PM
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    @ paul H

    Do you know of independent qualified asbestos surveyors? I looked at ARCA website which shows that it exists to support the industry of asbestos removal contractors .... so an ARCA person seems unlikely to be independent in assessing the possibility of asbestos being at a site.
    I very much feel the EA was shafted & is surely not responsible ... I can't quite see under present legislation who is, but would have thought the home owner (if anyone) as they are liable for teh safety of people who go to their property.... even burglars!

    • 02 November 2011 17:22 PM
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    @Simon Thomas

    You still miss the point.

    In my opinion it cannot be acceptable for an agent to be totally responsible for any undeclared 'hidden hazards'' in a property. That concludes my involvement in this item.

    • 01 November 2011 14:55 PM
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    Simon.....You said...."I'm not qualified to say what that risk assessment should involve - maybe it's just informing the contractor of the potential"

    You will find that for every single property the agent will inform in writing that there is 'potentially asbestos' at the property, just to cover themselves, but this will unfortunately not solve the problem. The only way to rectify this is for an ARCA specialist to carry out a risk assessment as an agent can not do this, as they are not qualified.

    • 01 November 2011 13:16 PM
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    @Simon. Pathetic. This is really unacceptable. We should not be standing for this. It is uncivilised.

    • 01 November 2011 13:10 PM
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    @ Paul H

    If the agent knows the approximate age of a building then he can decide whether or not asbestos might be present based on the dates that asbestos was banned. If work needs to be carried out on a property in which asbestos may be present, then an appropriate risk assessment can be done.

    I'm not qualified to say what that risk assessment should involve - maybe it's just informing the contractor of the potential? As some have said, suitable guidance should be provided by someone like ARLA.

    @ Ray Evans

    I'm not using my Father's death as a tear jerker. I'm using it to illustrate the severity of the subject, so that the message might get through, and that someone else's family might not suffer the same loss.

    • 01 November 2011 13:05 PM
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    @Industry Observer.

    I look forward to that. The article says the handyman was self-employed so it would seem an odd twist of the law for him to be an employee, under H&S Act, of the agent. Possibly, if he paid the agent a referral fee, but even then it would surprise me.

    But let's say that a clear employee, say a viewings person, discovered the asbestos and then broke it (it seems it was the handyman who broke it & caused the risk) surely it is unreasonable to say that the agent as the employer should have known there was a hazardous materials risk at the house?

    At many properties I see Marley floortiles or an asbestos garage roof. Are we now to refuse to sell or let properties like these? Or are we to have yet more disclaimers signed off by yet more people (vendors, staff, viewers, workmen, surveyors etc etc etc). In my opinion it is NOT the responsibility of an agent handling a let or a sale if hazardous materials are on site, especially if they are hidden. But far clearer industry guidance & perhaps legislation is needed.

    Yes indeed, perhaps surveys are needed in advance for all property related transactions. And if a garage roof is found to be asbestos, perhaps all staff and potential buyers/tenants should be provided with white suits & breathing apparatus ... at the expense of whom?

    • 01 November 2011 12:38 PM
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    My word this itemis causing a lot of knickers to get twisted.

    Whilst I admire the indigantion and circling of the waggons to protect a fellow agent I'm afraid Simon Thiomas by and large is correct and will explain later

    • 01 November 2011 12:14 PM
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    @Simon Thomas

    I have every sympathy for your loss.

    However, it is not relevant to the way this particular incident has been handled and you should not use it in this way as a 'tear jerker' attempt .

    • 01 November 2011 12:04 PM
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    Simon.....Can I ask if your suggestion is for a letting agent to assess the property prior to the start of a tenancy or for the agent to employ an asbestos company to do this and for them to issue some type of certificate?

    • 01 November 2011 11:55 AM
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    My suggestion that every 'at risk' property should be assessed may be too far, but the fact remains that the agent was found guilty because the law was broken. As agents, you should obviously be aware of risks and legislation that relates to your work - it seems this isn't the case.

    Dismissing responsibilities such as this because you find them inconvenient is not the act of a responsible professional. Whether you like it or not, the law sees agents as being responsible, so that is how you must act. Had the risks of asbestos been know sooner, and the legislation introduced, then my Father would probably still be alive today. He died as a direct result of inhaling asbestos fibres that were disturbed in a building he was working in. It's a shame that the person responsible for the building wasn't more of a 'jobsworth', don't you think Ray?

    • 01 November 2011 11:30 AM
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    This puts the whole Brandon Weston case into very clear view.

    It is OK to steal money from over 200 clients but fail to stop something that is only a latent hazard get fined £4000?

    Perhaps this is RICS' sneaky way of boosting trade. every rental propertyshould have a full structural survey!

    • 01 November 2011 11:11 AM
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    The buck has to stop somewhere - right?

    So the worker is employed to do a job that he was not told is hazardous.

    Yes he should have just stopped, but he was a conscientious contractor and carried on - stupid yes, but he's obviously a "good bloke".

    Ambulance chasing legal firm (probably on TV) told him to go for it.

    Nobody will employ him so £4,000 is a complete disaster for him.

    If I was the agent, I would then claim for the money off the owner, but then the bad PR would be a disaster for me...

    Bloody lawyers!

    • 01 November 2011 10:41 AM
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    I once bought & renovated an ex-authority home which had allegedly had its asbestos removed. I found a hell of a lot, but from what I can understand the white asbestos is deemed very low hazard by most who actually deal with it, its the blue to look out for. And most items containing asbestos are not marked as such, it can be hard to tell asbestos fibre from other fibre used in cement board etc.
    I think it wicked that a letting agent was penalised in this way, we need assistance from ARLA etc & clear instructions on how to proceed from here. I believe that agent was innocent & should be helped to fight this. Perhaps legislation is needed to include an asbestos survey in all property transactions but as yet there is no such legislation. And surely a self-employed handyman was not am employee of the agent anyway?
    If this agent is part of ARLA etc he should talk to them. Even if he is not it will help us all if ARLA can get involved.

    • 01 November 2011 10:15 AM
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    NEWS REPORT: HSE fines letting agent after worker loses fingers in waste disposal. A part time handyman / jobseeker lost his fingers attempting to unblock a waste disposal unit in a rented property. HSE spokesman Mr Thomas said "It was clearly the responsibility of the agent to instruct the worker to switch off power to the unit before attemting to remove the obstruction with his fingers." Lousie, the admin assistant that booked the handyman from yellow pages, was ordered to do 100 hours community service and pay damages of £2,400,000.

    • 01 November 2011 10:06 AM
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    Neil....sometimes asbestos is hidden, we are not builders, surveyors or asbestos specialists. To say that all agents should know about asbestos is an insult to all specialist asbestos companies who undertake hundreds of hours teaching about asbestos and the ways of dealing with it.
    This is not a case of an agent ducking the issue but put simply we are not qualified to deal with this!
    Perhaps a new asbestos check is required to be undertaken for every new rental property at the start of each tenancy similiar to an epc!

    • 01 November 2011 09:58 AM
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    It has sadly become part of our work environment that someone else is always to blame. A bit of common sence by all concerned is what is required

    • 01 November 2011 09:56 AM
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    Simon is obviously on a wind up, so don't take anything he posts too seriously. I would actually be amazed if one single person, never mind agent, supported this action. It is nothing more than tinpot dictatorship. The HSE should be called to order over this and the Letting Agent should at the least withold its fine until the government has intervened. The worst they are guilty of is employing the services of an idiot.

    • 01 November 2011 09:36 AM
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    Imagine being involved in the property sector for many years and not knowing anything about asbestos? Responsible for buildings but still not able to identify materials or covering that may contain asbestos. Call yourself a professional?

    Yes this is the situation with the vast majority of residential estate agents. Agents are quick to moan and whinge about any requirement to carry out CPD but at the first inhalation of an asbestos fibre, they align their slopey shoulders and ask for 'guidance', they ask for 'redemption' and they don't think it's their 'problem'.

    • 01 November 2011 09:35 AM
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    On the face of it this means that an agent would have to arrange to have inspected every inch of any property over a certain age? This needs absolute clarification and - dare I say it - guidance from ARLA or the like. It's time they earned their corn!

    P.S. Any practical guidance forthcoming from Simon Thomas - who seems to be a bit of a 'jobsworth' ;>)

    • 01 November 2011 09:25 AM
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    And why did the handyman not just put his tools down when he realised that asbestos was present and report it to the agent who could then get an asbestos disposal firm involved? After all he was the one who dismantled the roof and saw the asbestos board not the agent!! Surely all parties involved need to take appropriate care especially those directly involved unless of course they think they may get a pay out.......

    • 01 November 2011 09:23 AM
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    I'm not a lawyer, but it would seem to me from the way this has been written that the handyman was not an employee. Therefore as a self employed contractor surely he takes his own chances and must be aware of these issues. Or are agents to be considered to have the same liabilities and responsibilities as site foreman?

    Surely the HSE has got this wrong. Another quango to be binned??

    • 01 November 2011 09:22 AM
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    So now are we meant to have a asbestos report on all our properties before we instruct any contractors? Seems like this is what is being suggested but I know where my Landlords will tell me to go with this.

    • 01 November 2011 09:19 AM
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    Agents should be aware of these risks, and act accordingly. You don't need to be a building surveyor to understand that asbestos was widely used in old properties, and that it is extremely hazardous if disturbed. If you're taking on a property that potentially has asbestos in the construction then you should carry out a risk assessment either when listing it, or at least prior to any work being carried out on it.

    Making yourself aware of the legislation and risks involved surrounding asbestos is a small price to pay for the sake of a contractors life.

    • 01 November 2011 09:10 AM
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    I sincerely hope there is backlash over this.

    • 01 November 2011 09:08 AM
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    This is unbelievable. The letting agent is not a building firm, surveyor or contractor. A report would have come in that there was a problem and like any good letting agent, they would have reported it to the landlord and obtained a quote for repair from a contractor. Shouldn’t the landlords building insurance cover the liability???? We are turning more like America every day!!!

    • 01 November 2011 08:57 AM
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    Surely these costs should be passed on to the owner of the property, how on earth is the agent meant to know if there is asbestos on the roof, his not a mind reader!
    And since when is it a requirement to prepare risk assessments of properties?
    The whole thing is non sensical!

    • 01 November 2011 08:50 AM
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    This is an absolute disgrace. I'm disgusted by this. Start standing up to these people.

    • 01 November 2011 08:33 AM
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