Asbestos - are you managing the risk?

Everyone knows, or should know, that asbestos kills. Yet a recent Freedom of Information request by the Joint Union Asbestos Committee (JUAC), which can be viewed here, revealed that in the academy sector alone there had been over 50 asbestos incidents in a year, of which 5 had led to action by the Health and Safety Executive (HSE). Quite apart from the financial costs of failing to fulfil the duty to control asbestos, there is the moral responsibility for the illness or death of those for whom a school should care.

The financial risks to schools are prosecution by the HSE and of an action for negligence by the injured party. Since Willmore v Knowsley Metropolitan Borough Council EWCA 2011, when it was shown that the negligence of the Authority made a material contribution to Mrs Willmore’s illness, the possibility of historic claims has hung over schools. In the Willmore case the award was £240,000. A more recent case led to a settlement in five figures.

It is claimed that at least 319 teachers have died from mesothelioma alone since 1980. The real numbers are likely to be higher. Historic claims will inevitably continue because the risks of asbestos were formerly poorly understood; and once they were understood by experts, that knowledge was not at first widely distributed. All the more reason then, for schools to be making sure that they take the matter seriously today. About 75% of school buildings are estimated to contain asbestos.

On the positive side, a Government report in 2017 found that 81% of schools had an asbestos plan and 31% had reviewed their asbestos survey in the previous 12 months. 96.8% of schools claimed to have processes and procedures in place detailing control measures to prevent disturbance on asbestos; and 99.0% claimed to have processes in place to ensure that those who might be disturbing asbestos in school through building works or installation received information about asbestos.

And yet... the JUAC report for the same year records a rather different picture. Less than 50% of respondents had been told that their school contained asbestos; less than half of those had been told where it was; and in many cases the asbestos was easily accessible to children or vulnerable to vandalism.

Under the Control of Asbestos Regulations 2012 the Local Authority, governing body or trust (depending on the school category) has a duty to manage asbestos. The duty holder must ensure that those in schools to whom the management of asbestos has been delegated have been trained. There should be a written asbestos management plan following the duty holder’s taking reasonable steps to identify the extent, position and condition of asbestos.The results should be on an asbestos register. There should be a policy statement; written procedures; arrangements for monitoring on a regular basis (taking into account the vulnerability of any asbestos to disturbance); and written procedures for dealing with contractors and emergency situations.

The HSE published a helpful model risk assessment and general advice.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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