Written by Emma James, Associate in our Asbestos Litigation department.
It is estimated that over five million tonnes of asbestos have been imported into the UK since the 1940s [1]. Although the UK banned the import and use of asbestos in 1999, this did not see the removal of asbestos already in situ within our buildings. Nearly 25 years on, this raises the question: where is this substantial amount of asbestos now?
It is well known that many schools built between 1945 and 1980 were constructed using asbestos containing materials. This is especially true for schools that were ‘system buildings’ (CLASP etc.). [2] As a result of this, asbestos in our schools and public buildings has long been a problem. Today’s research suggests that asbestos is still present in around 80% of schools in the UK. The Health and Safety Executive (HSE), Department for Education and Government have all created guidance for the management of asbestos within our schools, which highlights this as an ongoing issue.
The Control of Asbestos Regulations 2012 (‘the Regulations’) sets out the specific duty for those responsible for maintenance works involving asbestos in non-domestic premises. The Regulations set out the ‘duty holders’ legal requirements. The ‘duty holder’ is defined under Regulation 4, and will be the employer, typically being the local authority for state schools. The employer will of course differ for privately owned/independent schools.
The code of practice and guidance that aligns with the Regulations confirms that ‘everything that can reasonably be done must be done to decide whether there is (or may be) asbestos in the premises, and if there is asbestos (or could be), to find out where it is likely to be’. [3] The Regulations and guidance are attempting to minimise the risks associated with exposure to asbestos as much as possible and it appears that they place rather strict obligations on duty holders.
In April 2023, the HSE released further guidance focusing on the hidden dangers of asbestos which aims to raise more awareness of the associated risks. Within the campaign, the HSE advised ‘there is no known safe level of asbestos exposure but that’s not to say it can’t be managed safely’. [4]
Despite the above, the concept of being able to manage asbestos in schools has been challenged since it relies on complete data, clear documentation identifying asbestos and compliance with the Regulations. There is a lack of consistency and standardised procedure when it comes to asbestos management in both state and private schools, so there will inevitably be gaps in the information held. This means that the true percentage of schools in which asbestos exists is unknown and likely higher than the 80% figure noted above. A lack of knowledge when it comes to identifying and registering asbestos also makes it harder for duty holders to comply with the Regulations and could lead to unknown exposure.
The reality is, school workers, who are not necessarily trained in asbestos management will be at the forefront of this issue, being the individuals running schools day to day. When you consider these factors, it is understandable why the notion of successfully managing asbestos in our schools has been questioned.
In addition to the above, it has further been suggested that, if asbestos is present in schools, staff and children may also be exposed to low environmental levels of asbestos as it degrades and gets more friable (without their knowledge). This is clearly a wider issue than simply managing known asbestos within schools and it appears that there is more to be done in such an environment that risks exposure not only to school workers, but pupils/children too. When considering the lifetime risk of developing the asbestos related cancer, mesothelioma, the younger a person is when they are exposed, the greater the risk they will develop the condition. [5] This makes sense when you consider the latency of the disease being between approximately 10 – 60 years.
Unfortunately, we continue to see former school workers and pupils being diagnosed with mesothelioma following asbestos exposure, and based on the current data, arguably this will likely continue unless asbestos in schools is managed collectively or better still, removed completely. There are currently several ongoing campaigns pushing for the phased removal of asbestos from all schools, however, implementing this initiative will of course come with its own challenges.
Hugh James recently recovered £175,000 (gross) in damages for Mrs S, who was diagnosed with mesothelioma in July 2019. Mrs S was a former school worker at Ysgol Gyfun Llangefni in the 1970s.
Mrs S was part of a team of cleaners required to clean walls, pipework, and sweep/mop floors. In her role, she was responsible for cleaning the music room, hall/stage area and terrapin building. Mrs S disturbed asbestos containing materials whilst going about her duties as a cleaner and as a result inhaled asbestos dust and fibers.
The defendant engaged in settlement discussions and the claim was resolved in Mrs S’s lifetime, which provided her with some financial security whilst dealing with her illness. Mrs S sadly died because of her condition, in December 2023.
This case emphasises the importance of proper and effective asbestos management in schools to protect all school workers and pupils from developing an entirely preventable disease.
References
[1] CC/2012/ (publishing.service.gov.uk)
[2] Guidance for duty holders ‘CLASP’ Asbestos in Schools Working Group (hse.gov.uk)
[3] The Approved Code of Practice and Guidance L143 (ACOP)
