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The Work and Pensions Committee asbestos report: five key recommendations

Written by Nick Garland on 11/05/2022
 

As you’ll no doubt all be aware, the Work and Pensions Committee has been conducting an inquiry into the Health and Safety Executive (HSE)’s approach to asbestos management. In its report, published in April, the committee calls for a raft of changes, including a proposed 40-year deadline for the removal of all asbestos from public buildings.

Predictably, I’ve already seen people commenting that 40 years is far too long, while others say the reverse and wonder how we’ll ever pay for it! But the asbestos management report is a substantial document, and I wanted to look at the changes and recommendations behind the headline. The committee has heard many opposing views from industry experts, campaigning groups, charities, victims groups,  government ministers and the HSE itself, and to its credit has produced a well-balanced set of proposals that deserve greater scrutiny.

The balance of evidence

Like most in our industry, I’ve been following the progress of the inquiry and the evidence presented to it. Everyone has their own opinion, but there were a couple of witness testimonies that I took issue with. In December, Professor Julian Peto of the London School of Hygiene and Tropical Medicine suggested caution over the mandatory removal of all asbestos, pointing out research in the 1980s showing that airborne asbestos levels in buildings were higher six months after removal than before.

I’ve no reason to doubt that research, but I have first-hand knowledge of how comparatively poor asbestos-removal techniques were when I started my career in the 1990s. In the 1980s it must have been even worse, as analysts weren’t even doing independent clearances back then. I’d be astonished if the equivalent research, conducted today, didn’t reach a very different conclusion.

In February, HSE chief executive Sarah Albon claimed that the 60% drop in asbestos enforcement notices over the last 10 years was evidence of better compliance. However, when we compare 2012/13 with 2019/20 (the most recent pre-pandemic period for which figures are available):

  • Visits by the HSE dropped by a huge 40%
  • Prohibition and Improvement Notices (combined) dropped by 48%
  • The number of Improvement Notices dropped by 67%
  • Yet the number of Prohibition Notices dropped only by 16%

What this suggests to me is that the HSE targeted the companies it thought would be the worst offenders, and pretty much saw what it expected, giving it a much higher hit rate of Prohibition Notices.

If that’s the case, then the figures rather undermine the suggestion of improved compliance. Instead, they suggest to me that some companies are simply avoiding having their collar felt, and I’m not alone. As Darren Evans of Asbestos Training and Consulting (ATaC) told the committee: “There are lots of people out there taking an informed view that they are unlikely to be visited, and therefore corners are cut.”

Let me stress that I’m not blaming the HSE here. Over the 10 years to 2019/20 the organisation experienced a 46% drop in funding – it did well not to cut visits even further.

Recommendations

Regardless of the details, the committee has managed to distil a mound of evidence and come up with some well considered proposals. The report’s key recommendations are:

  • The HSE should develop research to measure asbestos exposure in non-domestic buildings, and in particular schools and other public buildings. This came with dates – it should have a plan by October 2022, and then provide regular reports on its findings. The committee goes on to clarify that it doesn’t believe there’s a need to increase routine air monitoring, but research into the highest risk scenarios would be very beneficial.
  • There should be a deadline to remove all asbestos from non-domestic buildings within 40 years. The government and HSE should develop a strategic plan to achieve this, starting with the highest risk asbestos and the highest risk settings such as schools.
  • That more research is urgently needed to establish whether the historic view that it is safer to leave asbestos alone and manage it, rather than remove it, remains the case. This is especially urgent because of the likely huge rise in accidental disturbance that the race to Net Zero will bring.
  • There should be increased guidance to dutyholders and trades on their obligations. The committee suggests that lessons could be learned from the use of digital technologies in building management and in the health response to the pandemic. This should be a sustained campaign across a range of media. What works and doesn’t work with regards to getting the message over should be robustly evaluated.
  • A central, digital register of asbestos in non-domestic buildings should be developed, beginning with schools and hospitals.
  • There should be a sustained increase in inspection and enforcement activity by the HSE, targeting compliance with the Control of Asbestos Regulations. The HSE should establish from this whether it needs to specify a minimum level of competence for dutyholders.
  • Consolidation and simplification of the approach with regard to Licensed, Non-Licensed and Notified Non-Licensed work should be part of the ongoing 2022 review of the regulations.
  • There should be mandatory accreditation for all surveyors by a recognised accreditation body.
  • The HSE should assess the impact of making it a legal requirement (rather than the current strong recommendation) for building owners or occupiers to employ analysts directly and, by extension, make it illegal for asbestos removal contractors to do so.
  • The HSE should keep a watching brief on Europe’s move towards more stringent asbestos occupational exposure limits. It should carefully consider this in the context of Great Britain and what the costs and benefits of a similar move would be. The committee added a stern warning “It should ensure that the extent of the asbestos legacy in Great Britain is not seen as reason to tolerate poorer health standards.”

As I said, these are all well-balanced proposals. It’s hard to argue against any of them, but I can see a particular subset with the potential to bring the fastest, greatest benefits. Five particular points would have an obvious, immediate impact on safety and good management:

  1. Minimum competence for duty holders
  2. Central digital asbestos register
  3. Mandatory accreditation of surveyors
  4. Research into the real risk of management in situ versus the risks of removal
  5. Increase in enforcement

Just these five, if acted upon, would have the potential to transform our knowledge and our ability to act appropriately. Let me explain further.

Competence of dutyholders

We are long used to the absolute requirement for access to competent health and safety advice – why should it be any different for asbestos? This has always been something I care about, in all my work with clients – the central pillar is to ensure that they end up more capable of asking the right question at the right time. For large organisations, having this requirement might mean having someone on the books who is P405 qualified. For smaller companies it might be having the right health and safety consultant on retainer.

Digital Register

Whatever we are doing, we’re likely to be more diligent and careful if we know our work is going to be checked. We see the evidence of this all the time in asbestos management: there’s a difference between an unannounced audit and one where they knew you were coming, or a visual inspection with the UKAS assessor in attendance. If organisations know that they’ll be uploading their asbestos survey to the HSE, they’ll do it better. Just the very fact that a survey or register could be independently checked at any time will benefit standards hugely.

Accreditation of Surveyors

It’s always been unexplained why asbestos analysts must be accredited, but it’s only advisable for companies conducting a survey. It’s very costly to get and maintain accreditation, so it’s only really accessible to established organisations. But being un-accredited doesn’t necessarily mean bad – smaller firms and individuals may be unwilling or unable to go down that route.

Regardless, we currently have a situation where UKAS accredited companies must compete commercially against non-accredited companies and individual surveyors – that’s not a level playing field.

Interestingly the recommendation in this regard is that accreditation should be compulsory for the individuals conducting surveys, not the firms employing them. This change would immediately level things out: large and small firms along with individual surveyors should be able to demonstrate competence.

I’d expect that surveyors would welcome this professionalisation of the industry, as the employment power would be devolved down to them. The change wouldn’t allow companies to shirk their responsibilities, as it will remain their duty to ensure competence of the workforce.

Research

If the priority is to focus on schools and hospitals, just how big is the problem there? The short answer is that nobody knows, as very little research has been done. What we do know is that some schools have a good deal of asbestos-containing materials in them. We also know that young lungs are much more susceptible to damage from asbestos, and that youngsters are practically (and legally) considered not to be competent. This latter is crucial as ‘competent workforce’ is an important pillar in the current approach to managing in situ.

I’ve discussed the unique problem of asbestos in schools before, and the risks faced by teachers and pupils alike. As with other public buildings, UK policy has been to manage asbestos in place, but what little research this is based on is now well and truly out of date. Before we settle on any change in policy, we need to know for sure that removal is the safer option.

Increased Enforcement

I’ve said it before, but the 1974 Health and Safety at Work Act is a beautifully written piece of regulation. If you render it down to a couple of sentences, it essentially says: “The employer must be an expert in their field, must understand the risks, and must eliminate them as much as they can. And if they don’t there will be dire consequences.”

The author was very cleverly identifying that proscriptive legislation would never be able to keep up with the best and safest way to operate across multiple industries in a changing world, but that a regulator would be able to use the power of hindsight to identify if something could have been done better.

And that’s where the HSE comes in. It’s vital that they are out there making checks and serving up enforcements to ensure things are done better. To recall Darren Evan’s point, companies need to know they cannot cut corners, because they will be caught.

 

Will it happen?

I’ve focused on these five very positive recommendations, because together they would improve our knowledge of the problem, make the scale of the issue visible, and leave dutyholders in no doubt that they need to act appropriately. However, they would also represent an increase in costs to business, an increase in health and safety regulation, and an increase in funding for a public body (the HSE).

None of these things have been particularly popular with the UK government for a decade or more. For several years there has been an effective ‘one in one out’ rule for new regulations. Consequently, much of the HSE’s excellent guidance of late has had to be be sneaked out as appendices to Asbestos Network meeting minutes – not exactly the ideal situation.

I would like to end, though, on a point of optimism, from Charles Pickles from the campaign group Airtight on Asbestos. Responding to the report, he told me it was a rejection of the existing line that asbestos was “yesterday’s problem: nothing to see here”.

Instead, he said, it’s a move to acknowledge that “we have a problem with current exposure, and we need a plan to deal with it”. The Work and Pensions Committee has asked the HSE for its plan, and soon. And as Charles put it: “That really is a significant move.”

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"It's exactly the same checks you'd be doing with [paper], but you haven't got the folder. You haven't got the paper there - it's just done on a small screen. It's made my job easier."
Phil Neville, Operations Director, Asbestech,