A report published by the Health & Safety Executive (HSE) in 2010 on system-built schools highlighted that significant numbers of schools are not managing their asbestos effectively.
Several of the schools required further clarification following the issuing of the questionnaire: 10 failed to respond, 13 provided partial or incomplete responses and 19 were contacted for verification inspections to determine levels of compliance with the law.
Only a handful of responses were received from the 95 expected from the dioceses. Meanwhile, no attempt was made to assess compliance in Scotland, Ireland or Wales or within independent schools.
Action needed The responses from 42 local authorities were such that they required an inspection by HSE inspectors. Action was needed to improve arrangements for managing asbestos in 10 authorities. Enforcement notices were issued requiring improvements to asbestos management arrangements and further advice was given to the other 32 authorities on actions to enhance their systems for managing asbestos, or to ensure these systems remained effective in future.
There were 110 local authorities that were not visited as their questionnaire responses were accepted by the HSE and The Department for Education (DfE) as sufficient proof that they were achieving the required standards.
Of those authorities that were visited, failures were identified in asbestos awareness and training, a lack of knowledge of their school stock and what types of school buildings were at risk, flaws in asbestos surveys and a failure to implement the recommended measures.
In a number of authorities, poor standards of asbestos management plans were identified. Two local authorities had failed to identify those schools at risk and had failed to seal any cracks to prevent the release of asbestos fibres – some four years after guidance was first issued.
Similar flaws The findings are no surprise to the Asbestos Testing and Consultancy (ATaC), which published a report in February 2010 highlighting very similar flaws of asbestos management in a sample of schools.
The ATaC members have confirmed they find similar cases everyday in schools across the country. This has now been highlighted in both reports that there is a problem.
The chairman of ATaC previously stated: “These are not minor problems that have crept in over recent years; rather they are fundamental problems that are endemic in schools in the UK.”
The worrying thing about the HSE report is that it has asked local authorities to complete questionnaires exclusively regarding system-built schools with asbestos cladding on steel girders of a similar design to CLASP, whereas the ATaC report was not exclusive to building type and highlighted problems within various school building types.
Local authorities’ concerns It is also apparent that some of the local authorities who completed the questionnaire also have concerns over the HSE questionnaire as one commented in their response: “As per my previous email, I’m concerned about the quality of this questionnaire and the potential for misinterpretation when the contents are analysed. It does not show the full picture of asbestos management and only concentrates on a very small area. The questions are confusing and potentially misleading (far too open to interpretation).”
Another of the local authorities expressed its concern that the problems identified in the guidance had greatly increased the burden of asbestos management in these schools, and it raised the important issue of communicating the scale of the problem to staff.
“There is an emerging picture about the possible additional risks that may be associated with asbestos incorporated into system-built schools. Managing the risk of disturbing asbestos concealed behind column casings or asbestos fibres lying on top of ceiling tiles presents both practical issues (you cannot practically seal a lay in grid ceiling) and communication issues, where staff perception of high-risk buildings may lead to anxiety or even industrial action,” said a spokesman.
“Any work at all in ceiling voids in these buildings may be rendered impossible unless spaces below are sealed off and work required is treated as if a full asbestos strip is in progress. The measures implied in this return propose a much more intense regime of management and inspection than would have been deemed compliant and proportionate only a few months ago. Communicating this two-tier regime to schools will have to be handled with great sensitivity. Implications also emerge for a wholesale asbestos strip in all of these buildings, with the attendant impact on funding.”
Need for a national audit Both reports have highlighted the need for a national audit of the extent, type and condition of asbestos and also the need for an audit of the standards of asbestos management in all schools at ground level as this is where the problems have been highlighted.
Asbestos management is a major issue with, potentially, massive health implications for children, teachers and support staff.
Both of the reports show there is a massive gap with the compliance for asbestos management in schools. There is further pressure on the government to assess the risk of asbestos in schools following the decision of the Supreme Court in the combined appeals of Sienkiewicz v Greif (UK) Ltd and Willmore v Knowsley MBC on 9 March 2011.
The appeals concerned claims for damages for mesothelioma where the claimants had some occupational exposure to asbestos (Mrs Sienkiewicz) or exposure when a pupil at Bowring Comprehensive School (Mrs Willmore). In both cases, the defendants argued that this exposure was slight compared to the exposure to asbestos in the general atmosphere where the two women lived. They argued that the probable cause (of their mesothelioma) was the environmental exposure.
Mrs Willmore died of mesothelioma in 2009, aged 49 years. She had earlier been awarded £240,000 by the High Court as compensation for her illness from the council. The Court heard evidence that Mrs Willmore was exposed to amosite asbestos as a result of removal work in a corridor she used, also as a result of broken asbestos ceiling tiles present in the school. Mrs Willmore had originally alleged she was occupationally exposed to asbestos when employed at the Army and Navy Stores in Liverpool. She later amended her case to allege that the relevant exposure occurred when she was a pupil at school. The High Court found that Mrs Willmore had “significant” exposure to asbestos while at school and the council appealed this finding.
Special rules The Supreme Court dismissed both appeals, holding that the exposure in both cases was material and not insignificant.
It was acknowledged that the courts have developed special rules for dealing with mesothelioma claims in view of the difficulties that a claimant will face, in a claim involving multiple employers, in identifying which employer is responsible for his injury.
As well as highlighting the issue of asbestos in schools, the decision of the Supreme Court confirms that employers and others who have wrongfully exposed mesothelioma claimants to asbestos fibres, other than at a minimal level, will be wholly liable for the damage even if there was another source of exposure.
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