What are the legal duties of schools that contain asbestos?

It might seem difficult for many observers in the 2020s to believe, but there was a time when asbestos was very widely used in the construction of UK schools.

A naturally occurring, soft fibrous material that was only finally banned in the UK in 1999, asbestos was once used in such products as insulation lagging, insulation boards, spray coatings, and asbestos cement products. Examples of the latter included the likes of corrugated roof panels, wall and ceiling panels, tiles, pipes, and gutters.

The aforementioned products saw extensive use in the construction of schools up and down the UK, peaking from around the 1950s to the 1970s.

From approximately the 1970s onwards, it became increasingly apparent to the UK public at large, that the inhalation or ingestion of asbestos was linked to the development of potentially extremely serious – and indeed, often fatal – diseases.

Today, it is well known that such conditions as mesothelioma, asbestosis and asbestos-related lung cancer can develop in those who have previously been exposed to asbestos, even if the incident of exposure occurred many decades beforehand.

Fast-forward to today, and not only is the further use of asbestos in construction now banned, but stringent regulations have been put in place, to help control the risks that asbestos can still present in UK school buildings.

After all, a large proportion of school buildings in the UK date from before the year 2000, which means that many of these structures continue to contain asbestos. But what are the legal duties that now apply in relation to the management of asbestos in schools?

What is the legal situation regarding asbestos in schools?

There are various laws and regulations now in place in the UK, which set out the duties that those responsible for school buildings have, when it comes to keeping people safe from asbestos.

Both the Health and Safety at Work etc Act 1974 and the Management of Health and Safety at Work Regulations 1999, outline general requirements for ensuring optimal safety for people in the UK when they are in their workplaces.

For example, the Health and Safety at Work etc Act 1974 places a general duty on employers to ensure the health, safety, and welfare of employees and others. In order to fulfil this duty, employers will need to take steps to control the health and safety risks that the presence of asbestos could pose.

However, there is also legislation that focuses more specifically on the management of asbestos on non-domestic premises, in the form of the Control of Asbestos Regulations 2012 (CAR 2012).

Regulation 4 of CAR 2012 sets out a “duty to manage” any asbestos that may exist in a given building. It requires the person or organisation that has the “duty” – otherwise known as the “dutyholder” – to take reasonable steps to determine whether there are asbestos-containing materials (ACMs) on the given premises, and if so, to find out the amount, location, and condition of those ACMs.

If you are a dutyholder for a school site under CAR 2012, you will also be expected to put together, and keep up to date, a record of the location and condition of the ACMs, or materials that are presumed to contain asbestos.

Alongside this, you will need to assess the risk of anyone being exposed to fibres from the ACMs or suspected ACMs that you have identified. Furthermore, there will be a need for you to prepare a plan making clear what measures will be adopted in order to manage the risks from the materials. After assembling this plan, you will be expected to take the required steps to put it into action.

Another key element of CAR 2012 is a requirement to periodically review and monitor the school’s asbestos management plan, and the arrangements to act on it. This reviewing and monitoring process is necessary as a means of ensuring the plan continues to be relevant and up to date.

Who or what would be the “dutyholder” for a school under CAR 2012?

At this stage, you might be thinking… all the above sounds fair and reasonable, but who actually is the dutyholder for a school, in accordance with the requirements of CAR 2012?

It’s a good question, because for many schools, it might not be immediately obvious who, or what, the dutyholder would be. The answer to the question of exactly who or what the dutyholder is, will depend on how responsibility for maintaining the premises is allocated. And in the case of most schools, it will be the employer that is effectively also the dutyholder.

Nonetheless, to provide a quick guide for different types of school:

• If the school is a local authority managed one, such as a community school or voluntary-controlled school, the employer will be the local authority
• If the school is a voluntary aided or foundation school, it is the school governors who will be the “employers”
• In the case of academy and Free Schools, the academy trust will have the status of employer
• For independent and fee-paying schools, it might be the proprietor, governors or trustees who are considered the employers, and therefore also the dutyholders.

In cases where budgets for maintaining and repairing school buildings are delegated to the schools themselves by a local authority, it will be the local authority and the school that effectively share the “duty to manage” asbestos.

What legal responsibilities apply to schools where asbestos may be present?

It is one matter to know what vital legislation such as CAR 2012 states about school asbestos management, but it is quite another thing to know how such legislation translates into practical requirements.

For example, the “duty to manage” under CAR 2012 doesn’t specifically require that asbestos surveys be carried out; instead, the regulations call for “reasonable” steps to be taken to determine whether asbestos is present. In practice, however, the UK Health and Safety Executive (HSE) advises that there may indeed be a need for such a survey, depending on what an initial assessment discovers.

Furthermore, the National Education Union (NEU) has set out its belief that asbestos surveys should be undertaken in all schools, unless there is a good reason to not arrange such a survey. An example of “a good reason” would be a given school building in the UK having been constructed after the year 2000, as – in light of the ban imposed in 1999 – asbestos would not have been used in the building’s construction.

As for your next steps in managing the asbestos risk in a particular school building, much will also depend on what information you might already have about the premises – including any pre-existing asbestos record. It is worth noting, however, that even past asbestos surveys carried out in the building might have missed asbestos materials, so you cannot entirely rely on them.

If an asbestos survey is indeed required for a particular school building, a process known as a ‘management survey’ can provide the information needed in order to then put together an ‘asbestos register’. This ‘register’ will set out where asbestos is located in the building, or where asbestos might be present.

It is crucial, however, that any asbestos surveys on the site of a school are only carried out by suitably competent personnel. The NEU, for example, strongly recommends that schools only use surveyors that are accredited by the UK’s national accreditation body, the United Kingdom Accreditation Service (UKAS).

After the necessary management survey has been done, and information gained about any asbestos on-site, you will be able to start putting together an ‘asbestos management plan’ (AMP). This plan should stipulate who is responsible for managing asbestos on the premises. It should also include the asbestos register, and details about plans to work on asbestos materials, as well as the schedule for monitoring the condition of the ACMs.

A major part of asbestos management in school premises, is ensuring measures are in place for the regular inspection and management of ACMs on site. The UK Department for Education (DfE) says that schools must update their asbestos register and AMP whenever circumstances change, and recommends that dutyholders review the asbestos register and AMP at least annually. This will help ensure the continued accuracy and relevance of the information set out in these documents.

Is a school obliged to let parents, students or staff know about ACMs on the site?

The short answer to this question is: no, there is not currently any requirement in health and safety legislation to inform parents about asbestos in their child’s school.

In practice, however, some schools do tell parents about asbestos on their premises, while also providing details about asbestos management arrangements on the school site, to help reassure them.

In any case, the arrangements for managing asbestos at your school premises should be sufficiently robust to guard against any release of asbestos materials that would realistically present a health risk. In the event of such arrangements failing and asbestos fibres being released as a consequence, you should inform those – such as students or staff – who may have been affected.

What should a school do if asbestos is found?

If you do discover asbestos on your school premises, the steps that you will need to take will depend on such factors as the quantity and condition of the asbestos materials, and the risk of those asbestos materials being disturbed at any point in the future.

It is not automatically the case that if asbestos is found on school premises, the school has to be closed and the asbestos immediately removed – although this may indeed happen in some cases.

The HSE’s advice is that if ACMs are in good condition and unlikely to be damaged or disturbed, then it is better to leave the materials in place and introduce a system of managing them over time. If this is the decision you take for asbestos on your own school site, you will need to have arrangements in place to regularly inspect and monitor the materials, as the condition of ACMs – and therefore the risk they present – can change over time.

If, on the other hand, asbestos has been discovered through building work on the property, and unforeseen problems have arisen as a result of this – such as structural damage – it may be necessary to temporarily close the school building where asbestos has been found.

The NEU takes a stronger line on asbestos than the HSE; its policy is that the removal of asbestos should always be the first consideration. However, outright removal of asbestos might not always be immediately possible, so there may instead be a need for major changes to how school staff work.

By taking the time to put together a suitable asbestos policy and asbestos management plan, you can help ensure your own school is taking proactive steps to monitor and manage asbestos risks. This, in turn, will help minimise the risk of having to make sudden decisions in response to emergencies such as any incidents of asbestos fibres being released.  

Would you appreciate some help to keep on top of your legal duties in relation to asbestos in schools?

With there being quite a number of pieces of legislation that set out how asbestos should be managed in schools in the UK, we can understand that it might seem an overwhelming process to achieve compliance with your full duties in this area.

But if, as a dutyholder, you do adopt a proactive approach to the management of asbestos in your school, including putting in place arrangements for ongoing monitoring and reinspection, you can help ensure you are doing everything possible to keep users of the premises safe.

It is important to be aware of your duties in relation to asbestos risks in schools, and how those risks can be controlled. If you would like to receive the advice, guidance, and support that you require in order to manage asbestos safely and responsibly on your own school site, why not get in touch with the Oracle Solutions team today, whether by sending us an email or by giving us a call.