Education CommitteeWritten evidence submitted by the Asbestos in Schools Group (AiS)

Introduction

1. This evidence is submitted by the Asbestos in Schools Group (AiS). It therefore covers the aspects relevant to asbestos in schools. It examines the role and responsibilities of school governors, their training and skills. It examines how governors are affected by government policy in particular in academies and free schools. It examines their liability if a claim is made against the governing body for an asbestos related illness and questions the implications for recruitment. It makes simple recommendations.

2. The overall aim of AiS is to make schools safe from the dangers of asbestos. AiS is non-party political. The group’s expertise covers all aspects of asbestos in schools. Amongst the group’s members and supporters are MPs, all six of the teaching trade unions, the four school support staff unions, the asbestos consultants association ATaC, experts on risk, solicitors, doctors, the London Boroughs Asbestos Group, the asbestos victims support forum, the health and safety campaigning organisation Hazards, the Independent Schools Bursars Association and individuals including those who have been effected by the devastating effects of asbestos exposure in schools.

3. AiS are represented on the DfE Asbestos Steering Group. The committee reports to the Minister and it is tasked “To promote good practice in asbestos management in schools by local authorities, dioceses, school governors, head teachers, bursars and school business managers, parents’ groups and the teaching and support staff unions—in the independent and maintained sectors.”1

Executive Summary

4. Many governors do not have the necessary training, awareness and skills to oversee the management of asbestos in schools. The problem is significantly increasing with large numbers of schools becoming academies or free schools where the legal and practical responsibilities rest on the governors.

5. Because of their lack of asbestos awareness many school governors are taking on the responsibility for school buildings without realising the legal and financial implications when they contain asbestos.

6. In general pupils and non-employees are not insured for asbestos exposure risks in schools. Local authorities therefore self insure, however most academies or free schools do not have the resources to do so. The governing body are legally responsible for meeting any future claims, but in general there is no system in place to meet those claims.

Lack of Asbestos Training and Awareness Amongst Governors

7. Many governors are taking on the legal responsibilities in schools that contain asbestos without the training or skills to either competently or safely fulfil their duties. This is a particular problem in the increasing numbers of schools that are leaving local authority control.

8. The legal responsibility for the safety of staff, pupils and non-employees in academies, free schools, voluntary-aided and foundation schools rests on the governing body. DfE state:

The Health and Safety at Work Act 1974 requires employers to protect their employees at work. In schools, it also requires that ‘pupils, visitors and all other persons are protected from harm to their health and safety from known or foreseeable risks so far as is reasonably practicable’.

The Control of Asbestos Regulations 2012 places specific duties on those who manage non-domestic premises to identify the presence of asbestos-containing materials, and manage the risks they present...

The governing body is the employer for academies, free schools, voluntary-aided and foundation schools.2

9. For both practical and legal reasons training is an essential part of asbestos management. The school management team, including the governors, have to be trained so that they are aware of the dangers of asbestos and the need to implement rigorous measures to ensure the safety of the occupants. The governors also have to be aware of the priority asbestos warrants so that they allocate the necessary resources.

10. Governors will inevitably delegate the duty of managing asbestos. However governors need a good level of asbestos awareness so that they can judge whether the person to whom they have delegated the duty is doing it correctly. They must also be fully aware that as the governing body they retain the ultimate legal responsibility for the safety of the occupants.

11. A good practice in some schools3 is that the chair of governors annually signs the asbestos register. This not only assures that they are fully aware that the safety of the staff and pupils is their ultimate responsibility, but it also ensures that they keep abreast of the practical management of asbestos in their school.

12. DfE were asked by AiS to make asbestos training mandatory for school governors, headteachers, teachers, support staff and relevant officials in local authorities.4 They proposed that the training would be tailored to the role and would either be in basic asbestos awareness or full asbestos management training. DfE declined the proposal,5 instead they have issued basic web-based asbestos awareness guidance for headteachers and school governors, but even that is not mandatory and there is no system in place to determine if governors have read and understood the guidance and are managing their asbestos safely.6

13. In 2010 HSE commissioned a seven month study by a senior school leader to assess health and safety leadership in schools and to make recommendations. Extensive interviews were undertaken. His draft report was complete in August 2010. He expressed concern about the lack of training and clarity about responsibilities amongst governors and senior leaders in health and safety matters. He came to conclusions and made recommendations.7 The conclusions and recommendations are central to the role of schools governors in connection with the safe management of asbestos and health and safety in general.

14. The report has not been published, and critical recommendations have not been adopted. An FOI request was submitted in October 2010 for a copy of the report but was refused by HSE under section 22 “information intended for future publication” as HSE stated they planned to publish within six months.8 This has not happened. It is suggested that a copy of the report is obtained by the Education Select Committee for their inquiry.

15. Members of the asbestos consultants association visit schools throughout the country and they conclude: “The evidence is that the system of asbestos management in many schools is not of an adequate standard, in some it is ineffective, in others it is almost non-existent, and in some it is at times dangerous... 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...”9

16. One of the main reasons for ineffective asbestos management is a lack of training and asbestos awareness. Although some local authorities provide asbestos training for school governors it is not mandatory and it is known that where it is on offer there is a limited take up.10 If a school converts to an academy then it leaves the control of the local authority and anecdotal evidence is that many governors do not possess the asbestos training or skills to fulfil their duties.

Academy Governors taking on Unknown Liabilities

17. Governors in academies and free schools are taking on the legal and financial responsibility for schools without being sufficiently aware of the implications or what asbestos they contain. This is despite asbestos potentially being one of the greatest costs in maintaining, refurbishing or replacing school buildings.

18. Governors are taking on the liabilities on the basis of an asbestos “management” survey. Most surveys only identify the accessible asbestos but do not identify hidden asbestos, and therefore the governors are taking on an unknown financial liability.

19. Considerable costs overruns have occurred when unexpected asbestos material is uncovered during school maintenance or refurbishment. Written evidence to the Education Select Committee underlined the problem:

“In one project involving a 20 school refurbishment, a non-intrusive survey during the preferred bidder stage showed remedial costs of £1.4 Million. Asbestos removal is common in school refurbishments. It was acknowledged by both parties that there could be more asbestos and Jarvis’s liability was capped. Much larger amounts of asbestos were found subsequently leading to delays and cost over-runs which could not be obviously explained to parents without causing alarm or embarrassment to the client.”11

20. If the governing body does not have sufficient asbestos awareness they could find that they have unknowingly taken on a huge financial burden for just maintaining the buildings, and any plans to refurbish the school could founder when the unplanned cost of asbestos is included.

Pupils and Non-employees are Generally not Insured for Asbestos Exposure Risks.

21. Millions of school children are uninsurable against disease caused by exposure to asbestos at school. This brings into stark reality the risks to children from asbestos in the nation’s schools. However the implications are also far reaching for governors of schools and in particular those outside local authority control.

22. Public liability insurance covers the risks to pupils and non-employees. In general academies and free schools are unable to obtain commercial public liability insurance cover for asbestos exposure risks. The Minister confirmed in a Parliamentary answer that “there is a general asbestos exclusion for public liability insurance.”12 However, in the absence of commercial insurance, future claims can still be met in local authority schools as they self insure. But most academies and free schools do not have the resources to do so.

23. The legal responsibility for the safety of staff, pupils and non-employees in an academy rests on the governing body,13 which is the academy trust. They are therefore legally liable for any claim that may be made against the academy. The question therefore arises that if they are not insured who will pay any compensation awarded against the academy?

24. In answer to a Parliamentary question the Schools Minister implied that, in the absence of public liability insurance, the governors’ liability insurance will meet any future claims.14 Experts have advised that this is incorrect as governors’ liability insurance is not meant to be a catch-all insurance and will not normally provide cover for other uninsurable risks.

25. The Minister explained that the liability would fall on the academy trust rather than individual members of the trust “An academy trust is a corporate body so its members should not be held personally liable provided they act reasonably and in good faith”15

26. However it must be questioned whether it would be considered that the trust had acted reasonably and in good faith if they failed to have a contingency fund when they were unable to obtain insurance cover—and that question can only be resolved by the courts. If they considered that they had not acted reasonably and in good faith, then it must be presumed that the individual members of the trust could be personally liable to settle any claim.

27. The academy trust members are school governors. Most governors are not trained in asbestos awareness and will not be aware of the very real potential that any failure in asbestos management could expose pupils to asbestos with the possibility that any one of them might subsequently develop mesothelioma. Inevitably they will also not realise the personal implications for themselves and the financial burden on the academy if a future claim is made when there is no insurance cover.

28. In a subsequent Parliamentary answer the Minister made the legal position clear “The Secretary of State for Education...is not legally responsible for any compensation awarded, and nor is he bound by the terms of the funding agreement to compensate an academy for any such liability.”16 It is implicit in the answer that the academy would be expected to meet any claim from its insurance cover, and if that was unavailable then the claim would have to be met from its own resources.

29. It needs to be confirmed whether the governors of academies are aware of this or are aware that they need a contingency fund to meet any potential claims. It is reasonable to assume that they are not, and that is because DfE has not informed them. The Minister acknowledged in answer to a parliamentary question “No guidance has been issued to local authorities, academies or free schools in respect of insurance cover for asbestos exposure risks.”17

30. DfE has a duty to ensure education and therefore the Minister gave the assurance that if an academy had to settle a claim from its own resources then “The Department for Education would work with any affected academy or free school to ensure that it remained financially secure and the education of its pupils was not compromised”18

31. DfE however added the caveat that “Academies are meant to have insurance and therefore if an award was made that brought the financial viability of the school into question this would be done on a case by case basis, taking into account a range of factors which would include, for example, the financial viability of the school and its overall performance.” 19

32. The caveat puts into question the credibility of the assurances, because the unresolved question has to be what would happen if the academy or free school was not financially viable or had a poor performance?

33. DfE’s statement that decisions will be on a case by case basis avoids addressing the problem now and instead defers decisions and any proper solution until the first claim is made. Because of the long latency of mesothelioma that could be twenty or thirty years from now when the first victims from academies and free schools develop mesothelioma. At which point it is far too late for an academy to be told it should have had a contingency fund and for a former pupil with a terminal illness to discover that their school had been unable to obtain insurance and that no one has properly thought through how to meet their claim.

34. A further problem is that some academy trusts believe that they have full public liability asbestos risk cover when they do not. Expert brokers have stated that the exclusion clauses in some policies for negligence and long term exposures in effect means that most potential claims will not be covered. It might take thirty years for a claim to be made and only then will the academy realise the profound significance of these exclusions.

35. As at 1 December 2012 there were 2,543 academies in England20 and 79 free schools.21 Therefore this is a problem that affects the governors and many thousands of pupils and non-employees in schools. If asbestos is present in a school there is always the potential for claims. If asbestos management is to be a viable option then there is a practical and moral obligation on the government to ensure that there are means in place to meet those claims.

36. Although this is a problem that has been specifically identified in academies and free schools, it needs to be confirmed whether it extends to voluntary aided schools, foundation schools and independent schools.

37. The lack of asbestos risk insurance cover has far reaching implications for the government’s policy of managing asbestos in schools rather than removing it. If the issues are not resolved then the government cannot expect governors to take on the legal responsibility for managing asbestos if they are unable to obtain insurance cover.

38. They cannot expect people to be governors of academies or free schools if they could be liable for settling any future claim.

39. And they cannot expect pupils to attend schools that contain asbestos if the schools are not insured against any future claim they may make.

40. In addition the governors of academies and free schools cannot be allowed to enter blindly into an agreement that could have far reaching implications for their financial viability. The governors have to be aware of the risks from asbestos and informed of the implications if they do not have full public liability asbestos risk insurance.

41. AiS has asked DfE to provide answers on how any future asbestos related claims will be met, but, as at 17 December 2012, no satisfactory answers have been forthcoming. AiS has also asked that governors are informed of the situation, however as yet DfE has issued no guidance on the matter.

Recommendations

Asbestos awareness training is made mandatory for school governors.

The Chair of Governors annually signs the asbestos register and management plan as their responsibility.

Academy transfer agreements detail the asbestos the buildings contain. If areas have not been accessed then the agreement must clearly summarise the asbestos that the building could potentially contain. In addition the financial implications for future maintenance or refurbishment must be made clear.

DfE issues clear, unambiguous guidance to schools outside local authority control that details how future asbestos related claims will be met from former pupils and non-employees.

January 2013