Legal Focus: Is asbestos and RAAC in public buildings under control?

Asbestos remains the single greatest cause of work-related deaths in the UK.

The Health and Safety Executive (HSE) reports it kills around 5,000 workers each year, more than those killed on the road, The fabric of many of our public buildings contains a lot of asbestos, in various forms, and a significant proportion of those buildings are in a dire state of repair.

Asbestos-related disease claims, caused by the inhalation of asbestos fibres, remain a headache for insurers and those companies unable to trace insurance. Claims cost is significant.

The presence of asbestos in so many of our buildings means employers and those with responsibility for building maintenance must ensure they take their legal obligations in relation to the management of risk arising from asbestos seriously.

Recent concerns regarding reinforced autoclaved aerated concrete (RAAC) and the impetus to identify and remove it, sit uncomfortably with the current approach to the management of risk associated with asbestos in buildings.

The strategy for asbestos has long been to maintain rather than remove, for fear of creating a greater hazard as a consequence of the removal process. That approach is now being challenged.

The strategy for asbestos has long been to maintain rather than remove, for fear of creating a greater hazard as a consequence of the removal process. That approach is now being challenged

RAAC, a cheaper alternative to standard concrete, was used extensively between the 1950s and 1990s, a period that overlaps neatly with the wide deployment of asbestos in building construction.

Schools and other public buildings fitted with RAAC that is beyond its 30-year design life expectancy may well also contain asbestos. Remove RAAC and you risk disturbing asbestos.

The importation, supply and use of blue and brown asbestos, the most dangerous forms, was banned in 1985. This was followed by white asbestos in 1999. Until then, asbestos was used heavily in a variety of building products, including insulation material for buildings, boilers and pipes; floor tiles; asbestos insulating boards; and asbestos cement for roofing sheets.

Asbestos-containing materials were used in the construction and refurbishment of many public buildings, including schools, hospitals and universities, during the post-war building boom. Much of it remains in situ, with the HSE estimating it is present in some 300,000 non-domestic buildings (and many more homes).

Dangers of asbestos

Breathing in asbestos fibres, released when asbestos-containing materials are cut, damaged or disintegrate, can cause a variety of lung diseases. Those leading to death include mesothelioma, lung cancer and asbestosis. It can take on average 35 years for an individual exposed to asbestos to develop symptoms associated with mesothelioma. Unfortunately, even modest exposure can lead to the disease.

The period 1980 to 2015 saw a dramatic increase in asbestos-related deaths, driven largely by mesothelioma. Fortunately, we appear to be over the peak, although female deaths from mesothelioma, while far less numerous than male, may have plateaued. The HSE report there were 2,268 mesothelioma deaths in the UK in 2021, 302 fewer than the year before. Male deaths fell 236 and are expected to continue falling. Female deaths fell 66, from 467 to 401, but are predicted to continue at 400 to 500 deaths a year during the 2020s.

Male deaths largely arise in those who previously worked in the construction industry. The profile for females is different. For them, elevated deaths are observed in those whose last recorded occupation included “elementary trades and related occupations”, “administrative occupations” and “teaching and educational professionals”.

Concerns have been mounting the deterioration of the fabric of buildings within which asbestos-containing materials are fitted, as well as poorly planned renovation works, could be a source of harmful exposure.

The management of asbestos in non-domestic buildings and the common parts of certain domestic buildings is now regulated in Great Britain by the Control of Asbestos Regulations 2012.

The HSE issues an approved code of practice (ACOP) on asbestos management to accompany the regulations and operates a statutory asbestos licensing regime under which businesses are authorised to carry out higher-risk asbestos work. It enforces the regulatory regime and undertakes five-yearly reviews of the regulations’ effectiveness.

The ACOP provides guidance to employers and those who have a duty to manage asbestos in line with the regulations (the owners of non-domestic premises or those responsible for the maintenance and repair of those premises).

The ACOP says “where asbestos is in good condition, well protected and unlikely to be disturbed”, it can be left in place.

Asbestos removal

However, an increasingly vocal lobby is calling for a programme of phased asbestos removal. The Sunday Times has thrown its weight behind this with its #ActNowOnAsbestos campaign focusing on the risk posed by increasingly dilapidated school premises.

A 2022 inquiry by the House of Commons work and pensions committee into the HSE’s approach to asbestos management was critical of its effectiveness.

Ten recommendations were made, including that the HSE gain a better understanding of the amount of asbestos in non-domestic buildings and set a deadline for the removal of asbestos from those buildings within 40 years. All 10 recommendations were subsequently rejected by the government.

The discovery of RAAC concrete past its 30-year life in the same buildings, capable of collapsing without warning, brings the debate into sharp focus. Duty holders and employers may no longer have the luxury of managing asbestos in situ if their RAAC removal programme risks disrupting it.

Although the harmful effects of asbestos exposure may not be seen in those individuals who inhale it for decades, employers and “duty holders” under the 2012 regulations must ensure they are complying with their legal duties in relation to asbestos management now.

Clearly, if you do not know whether the building you are responsible for contains asbestos, where it is and what condition it is in, you risk being found in breach of your legal duties and risk exposing those using the building to harmful asbestos.

Although the “maintain” strategy is itself being maintained, the immediate challenge posed by RAAC has potentially thrown a hand grenade into the mix.

It remains to be seen whether the combined effects of RAAC removal and pressure from lobby groups and other powerful voices like The Sunday Times will force a change of policy, or indeed whether such a major programme of inspection and removal would be affordable in any event.

Meanwhile, the deadly legacy of asbestos rolls on. 

Gregor Woods is partner and head of the defendant personal injury team at CMS