It has been described by umpteen charities, newspapers and governments as “the silent killer” and is the root cause of several high profile asbestosis lawsuits. According to the Health & Safety Executive, it is the single biggest threat to tradesmen: taking the lives of an average of 20 such workers a week. I am talking, of course, about asbestos. Once a quintessential go-to ingredient for British builders, the very mention of “asbestos” can now send developers, surveyors and conveyancing lawyers alike into a cold sweat. In a relatively short period of time, asbestos has gone from being described as “a magic mineral” by chemist Lilian Holmes Strack in 1941 to a “silent killer” of the 21st century.
This notoriety has, of course, attracted considerable legislative attention and there are strict regulations governing the removal and treatment of asbestos. Despite this, there are questions abound surrounding the suitability of these rules and whether they adequately protect the public. However, before looking at where these rules may fall short, it is necessary to review the law as it stands.
The Control of Asbestos Regulations 2012, in force now since April 2012, imposes an explicit duty on the “dutyholder” to ensure any asbestos within a premises is adequately managed. In most situations the “dutyholder” is either the owner-occupier or tenant (whose lease imposes maintenance or repairing obligations) of a non-domestic premises. As asbestos may be present in buildings built at any time before the turn of the century, it is obvious that the Regulations will apply to the majority of non-domestic properties in the UK. Where the Regulations apply, the dutyholder must make all reasonable steps to determine whether asbestos is present in the premises, and this duty is broadened to require the dutyholder to maintain regular records detailing the location, type and situation of found asbestos or materials potentially containing asbestos, if found. Protection of those coming into contact with any identified asbestos is intended to be at the heart of this duty as the dutyholder must also assess the consequential risk the asbestos may have on such individuals and prepare and implement plans to mitigate such risk. So stringent are the duties on the dutyholder that there is a presumption that all materials contain asbestos unless proven to the contrary.
Even from this very brief outline of the 2012 Regulations, it is clear that there is a clear theme towards the management of existing asbestos. In terms of an obligation to actively remove asbestos, the Regulations are somewhat less demanding. This reflects the generally followed medical position that asbestos which is left untouched is safe – that it is loose asbestos dust or fibres which are the main exposure risk.
There is, however, an inherent danger in this current legislative approach. Recently, there have been a variety of advocacy groups and organisations seeking to highlight the issue of asbestos in local authority schools and nurseries. They argue that in places frequented by large numbers of – sometimes obstreperous – children and teenagers the risk of asbestos disturbance is increased and the health dangers enhanced. This presents a problem. As the dutyholder of a local authority school is the Council itself. As described above, this requires adherence to the 2012 Regulations and all it entails. Furthermore, failure to comply can result in prosecution by the HSE. However, between inspections, several councils have already cited their need to rely on schools and nurseries themselves to notify them of any potential asbestos disturbances. Based on a March 2015 Department of Education report “The management of asbestos in schools: A review of Department of Education policy” there is evidence that in England there is a significant minority of schools which lack the necessary guidance to know when to notify their parent authority in this respect. While this disconnect may not be an issue in terms of determination of liability, it nevertheless exposes some of the most vulnerable in society to asbestos inhalation. Moreover, it is this same disconnect which various asbestos charities have cited as evidence that standard asbestos management in schools are not fit for purpose.
For this author, it is difficult to argue with much of this criticism of the current asbestos management regulations. Local authority schools and nurseries are tasked with educating and caring for our children. However, it must also be asked whether any reform of the asbestos rules as they apply to schools may also be appropriate in the private sector more generally. In the same way Councils require individual schools to notify them of possible asbestos disturbances, many large commercial tenants rely on their local management to notify their corporate registered office of any issues. In turn, this disconnect is replicated in the private sector and whilst liability – like in the public sector example – may not be in dispute, the nature of asbestosis and other related conditions means that liability only arises when an individual's health has already been compromised.
In this sense, the current theme of the 2012 Regulations is one which brings to mind the saying: “to shut the stable door after the horse has bolted”. It will be interesting to see what effect these recent evaluations of the current asbestos regime has, not only within public schools and nurseries, but beyond. As the “silent killer” of our age, it may be that the time has come to abandon the current focus on asbestos management with a more rigorous asbestos management and removal regime. Whilst asbestos containing material continue only to be managed, the risks remains that the asbestos may be disturbed in the future. Even untouched asbestos materials will deteriorate over time and eventually release toxic fibres or dust. In the long run, this may well result in higher operating costs for dutyholders – which has long been cited as justification for the current legislative approach – but given the extensive use of asbestos in British construction and the fact mesothelioma alone continues to kill over 1,800 people each year in the UK, a more aggressive approach may now be required – and not only in our schools.
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