Asbestos in Schools and FOIs

Parental concern about asbestos in schools is resulting in greater numbers of FOI requests and so it is vital for academies and MATs to be prepared.

In this article, SV Armstrong solicitors explains the importance for academies and MATs that receive Freedom of Information requests directly to ensure that they both manage the system for controlling asbestos, as well as managing the replies they give to FOI enquiries.

Freedom of Information Requests

The BBC in Yorkshire and an asbestos campaigner have recently submitted Freedom of Information (FOI) requests to 135 councils with responsibility for 12,300 asbestos affected schools (see footnote 1). From these FOI requests, 13 Councils did not know how many schools contained asbestos, and 99 schools had reported incidences of asbestos exposure between 2011 and 2016.

In addition, other FOI requests have been generated by concerned parents, staff members and journalists in order to investigate their local schools and academies.

Control by Local Authorities

Prior to the move to Academy status, the law required each Local Authority (“LA”) to manage the presence and condition of asbestos in its schools, according to the Control of Asbestos Regulations 2012 (see footnote 2). From 2011 the HSE was required to treat schools as low-risk sites that were exempt from proactive inspection as they were viewed on the whole as being well managed.

The Department for Education has argued that asbestos in schools will be tackled gradually and a £23 billion programme will slowly modernise schools. However, in 2012-15 the Education Funding Agency’s Property Survey failed to factor in asbestos in its assessment of the condition of schools, taking account only of the presence of asbestos management plans rather than the cost of managing or removing asbestos.

As schools move out of LA control, the Asbestos in Schools campaign has expressed concerns about the lack of technical health & safety expertise to back-up the transfer of the LA’s asbestos management plans. MATs do not generally have their own in-house health & safety manager, or plans in place for the removal of asbestos. In addition, they may not have the same levels of insurance cover as LAs, so future claimants may not have the same ability to claim compensation.

Social Media campaigns

Since 2011 campaigners have focused on transparency for teachers and parents - as is the case in the US where schools report on changes in the presence and condition of asbestos on an annual basis. Concerns with asbestos and its management in this country have resulted in both local and national social media campaigns focusing on the aim of completely removing all asbestos from schools, and public buildings by 2028, and the disclosure of information relating to the current management of asbestos in schools.

However, according to the NUT, in a survey in 2015, it concluded that 44% of teachers had not even been told if their schools contained asbestos.

Despite these calls to action, a comprehensive programme to remove asbestos from schools and public buildings is considered unlikely to be funded by Central Government, particularly in those schools that have achieved Academy status.

Asbestos Management Responsibilities

Whilst asbestos remains in good condition it might not pose a risk to staff, students or visitors (such as contractors) and the school as a workplace might initially be considered to be a low risk. However, without knowing where asbestos is within the buildings, or the condition of the asbestos containing material, it is impossible to know whether the asbestos has become a threat to health.

The duty to manage asbestos requires dutyholders to: 

• take reasonable steps to find out if there are materials containing asbestos in non-domestic premises, and if so, its amount, where it is and what condition it is in 
• presume materials contain asbestos unless there is strong evidence that they do not 
• make, and keep up-to-date, a record of the location and condition of the asbestos- containing materials - or materials which are presumed to contain asbestos 
• assess the risk of anyone being exposed to fibres from the materials identified 
• prepare a plan that sets out in detail how the risks from these materials will be managed 
• take the necessary steps to put the plan into action 
• periodically review and monitor the plan and the arrangements to act on it so that the plan remains relevant and up-to-date 
• provide information on the location and condition of the materials to anyone who is liable to work on or disturb them

Without survey and sampling data it must be presumed that all materials within the fabric of school buildings from window surrounds to roofing materials are made from asbestos. This means that often building repair work cannot take place which disturbs such material without some sampling taking place.

Whilst it may be safe to treat buildings as if they contain asbestos, in the long term it can be more expensive to carry out sampling whenever maintenance is required.

If the presumptive approach is followed, then any damage to school premises should be treated as an area of concern and small amounts of damage such as a broken panel might lead to a report of a dangerous occurrence, and the closure of part of the building until tests have been carried out. Where building materials have been kicked, scraped or are in poor condition, schools should be erring on the side of caution and HSE is increasingly becoming involved.

HSE Inspection

In 2012, Caerphilly County Borough Council commissioned a consultant to report on the risk to occupants of Cwmcarn High School. This report concluded that asbestos levels in classrooms in a 1960s building were a risk to occupants. However, in 2013, when HSE investigated the Cwmcarn High School report, it concluded that incorrect sampling techniques had been used and given a skewed picture of exposure levels.  After re-testing, the HSE found negligible levels of asbestos fibres present and Caerphilly Council re-located students back into the school. However, with only half its pre-closure roll of 900 students, the school struggled to achieve academic targets and in 2016 Caerphilly Council confirmed that it would close the school permanently in 2018.

In 2013-14 HSE visited a sample of 153 schools outside LA control and concluded that compliance with the Control of Asbestos Regulations was “patchy”. 13% of the schools visited received improvement notices, and a further 24 schools received written advice.

Recommendations

Parental concern about the management of asbestos in schools is resulting in greater numbers of FOI requests. It is relatively easy for an FOI enquiry to generate negative information about a school and the Control of Asbestos in schools. It is therefore vital for academies and MATs receiving such requests direct to ensure that they both manage the system for controlling asbestos, as well as managing the replies it gives to FOI enquiries.

Footnote 1: According to an article published in Health & Safety at Work, the magazine of the International Institute of Risk & Safety Management, in February 2017.

Footnote 2: CAR 2012 came into force on 06 April 2012 and updated previous asbestos regulations to take into account the European Commission’s view that the UK had not fully implemented the EU Directive on exposure to asbestos (Directive 2009/148/EC).

  

If you would like to discuss any aspect of this article further, please contact Stuart Armstrong of S V Armstrong Solicitors or if you have any other enquiry about an education or employment law matter, please contact Graham Shaw on 0113 244 6100. You can also keep up to date by following Wrigleys Solicitors on LinkedIn. The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors