A report into asbestos in UK buildings was published in November 2022 following a collaboration between the two asbestos consulting trade associations, ATaC (Asbestos Testing and Consulting) and NORAC (National Organisation of Asbestos Consultants).
The report was produced in response to the recent inquiry into asbestos management in the UK by the Work and Pensions Select Committee, which highlighted that little evidence exists about the amount and condition of asbestos in UK buildings.
It collated and analysed over one million lines of data and is perhaps the most important indicator of the effectiveness of asbestos management in the UK, and a measure of the HSE’s flagship ‘Duty to Manage’ regulation.
The collection of data was made easier as a large proportion of asbestos surveys are carried out using database software. With ATaC and NORAC representing the majority of United Kingdom Accreditation Service (UKAS)-accredited asbestos surveying companies, the two organisations decided to combine efforts to provide a factual-based review of the Duty to Manage.
The anonymised information comprised over one million data points derived from over 128,000 premises across the country. The size of the data set makes this the most significant overview of the condition of asbestos in UK buildings ever undertaken.
Of the 128,000 buildings inspected, about 100,000 (78 per cent) contained asbestos-containing material (ACM).
- Within those 100,000 buildings, about 710,000 items of ACM were listed
- Of the 710,000 items of ACM, about 507,000 (71 per cent) were damaged with only 29 per cent in a good condition
- Of 710,000 items of ACM, 158,000 (22 per cent) fall into the category of licensed work (which requires strict safety procedures to be followed by licensed asbestos contractors to reduce the risk when removing or sealing the asbestos)
- Of the 158,000 items of licensed ACM, 29,000 (18 per cent) had medium or high damage
- 280,000 items were re-inspections of previously known ACM, of which 202,000 (72 per cent) were damaged; this means they were either damaged when originally found and have not been made safe, or have been damaged in the intervening period. Both scenarios indicate a failure to manage the risk from the ACM.
Focusing specifically on the housing sector:
- About 94,000 of the 128,000 sites inspected (73 per cent) were domestic3 properties, almost exclusively social housing
Around 80,000 (86 per cent) of domestic dwellings had ACM (compared with 78 per cent of all buildings)
- 16 per cent of housing had licensed products (compared with 22 per cent for all buildings)
What does this tell us about asbestos management today?
This initial report has focused on the extent of damaged materials within the UK property portfolio. Given that the underlying premise of the Duty to Manage is to maintain asbestos in a good condition, the quantity of damaged ACM does not make good reading.
Also, with about 78 per cent of the asbestos identified being categorised as non-licensed work (if it is removed or worked on), there appears to be a large proportion of work with asbestos that, while regulated, is largely unenforced by regulators and therefore under the radar.
Although there are legal controls on how non-licensed work must be carried out, it is subject to less scrutiny from the enforcing authorities than the work of licensed asbestos contractors.
The report reveals some concerning asbestos management failings in the UK. Though the root causes of this ineffective management are complex, the report shows that after 20 years of the Duty to Manage regulation, there are major questions to be asked regarding its effectiveness.
The data also highlights the asbestos problem within social housing, an area largely ignored by the current regulations and one which clearly needs to be examined with some urgency.
Good asbestos management is about preventing the exposure of employees, householders and the general public to asbestos. This data indicates that the UK does not yet sufficiently do this. The legacy of asbestos related disease deaths, currently at 5,500 a year, has the potential to continue for many generations.
The publication of the report has shown the power of collaborative working, and the valuable support of the software providers means similar reports can be published on an annual basis. These will help identify developing trends in the identification and management of asbestos in UK buildings, and provide a counterpoint to the view that the regulations continue to fulfil their intended purpose.
HSE schools inspection programme
Following the Work and Pensions Select Committee inquiry, the Health and Safety Executive (HSE) instigated a programme of inspections in schools which began in the second half of 2022 and was due to be completed at the end of March this year. The purpose is to assess the level of compliance with asbestos regulations in a sample of 400 British schools (1.6 per cent of the total).
It might come as a surprise that they are not unannounced inspections – the regulator has provided school leaders with advance notice of the visits. HSE has been assisting the education sector by sending out e-bulletins outlining which documents they should have in place during the visit, and what the inspectors will ask. There is also guidance on what to expect when an inspector calls.
This suggests the report, due later this year, would demonstrate high compliance. However, a recent review of HSE’s register of enforcement notices shows that in the first two months of the inspection programme, 17 schools were issued with enforcement notices for breaching the Duty to Manage. A selection of statements accompanying the notices is given below:
- “You have not made arrangements for the regular checking and recording of the location and condition of substances suspected of containing asbestos in your premises, and for the provision of this information to every person liable to disturb it.”
- “Asbestos-containing materials (ACMs) have been identified on the premises but there is no suitable written management plan to manage the identified asbestos.”
- “You have failed to make a suitable and sufficient risk assessment of asbestos-containing materials (ACMs) present in the premises over which you have control. You have not produced a written plan for the premises which identifies the steps to be taken to manage the risk…”
In many cases the inspection highlighted that although a school might have an asbestos survey, register or existing asbestos information, it has failed to produce a plan to manage the risk. This implies some schools may view their obligations as a ‘duty to survey’ rather than a ‘duty to manage’ and therefore one that stops after they have procured a survey.
When the Duty to Manage was introduced in 2002, the HSE was very clear that it was not simply a requirement to have a survey carried out – it was also necessary to act upon the information and manage the risk. Having a survey done is easy; you pay someone else to do it. Managing the results of the survey is harder because you have to do it yourself as the dutyholder.
The future of the Control of Asbestos Regulations 2012 (CAR)
The House of Lords is currently debating the government’s Retained EU Law (REUL) Bill that will decide what to do with around 50 years of EU derived legislation: the ‘bonfire of legislation’, as it has become known.
If the REUL does become law then potentially from 1 January 2024, there will be no asbestos regulations for the first time since 1930.
Unless the Lords force amendments to the Bill, or the government provides alternatives to the 2,400 pieces of EU-derived legislation, the default is that everything must go.
Several scenarios present themselves:
- The Bill goes through as planned and CAR 2012 disappears on 31 December requiring the government to replace or sift through the entire body of asbestos management regulations before the end of the year (although any new legislation has the government stipulation that it must be “less burdensome”)
- CAR 2012 is included in the health and safety legislation to be retained
- The ‘sunset’ clause is extended to 2026 and CAR 2012 is kept until then.
The loss of CAR 2012 without suitable replacement regulations would have serious consequences for the management of asbestos in UK buildings, which is a genuine cause for concern.
What has become apparent is that asbestos management is becoming caught up in the political crossfire with the fire-related Building Safety Act. In March 2023, the government announced it intends to spend £42 million on recruiting 200 building safety inspectors and fire protection officers to support its new high-rise building safety regime. Compare this with the number of HSE field inspectors that has been cut from around 1,500 in 2010 to fewer than 500 today.
If you want CAR to be meaningfully retained as the essential piece of legislation it is, then write to your MP and highlight its importance; the alternative could be harmful to the health of all of us.
Mick Dawson is Management Committee member of the Asbestos and Testing Consultancy Association (ATaC)
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