A recent publication from the Health and Safety Executive will help local authorities and schools understand what duties they have to identify and manage asbestos in schools.
Local authorities and schools who are intending on procuring refurbishment works and/or extensions to existing schools (or where such works are currently being carried out) should also consider what the apportionment of responsibility is between itself and the contractor appointed to carry out such works in relation to any asbestos discovered during the course of carrying out the works.
The typical apportionment of risk in a standard form of design of build contract (either under an existing Building Schools for the Future (BSF) arrangement or under the national Contractor's Framework) is that the discovery of asbestos will be the responsibility of the contractor if the asbestos in question was identified in the asbestos survey carried out or which would have been identified had that asbestos survey been properly carried out.
Some common issues which arise:
- Who should procure the asbestos survey? Ideally, the contractor (engaged to carry out the works) should procure an appropriate asbestos survey having regard to the nature of the works. This is to avoid the contractor seeking to amend the standard form apportionment of risk (described above) on the basis that it does not have a right of recourse against the surveyor if they failed to identify asbestos which they would have identified had the survey been properly carried out. If the local authority or school procures the asbestos survey it will need to enter a formal and robust survey appointment with an independent surveyor (that includes an entitlement to require collateral warranties to be provided in favour of contractors) to avoid such arguments from the contractor that it cannot rely upon the survey carried out.
- What is the scope of asbestos survey? If the school is occupied immediately prior to or during the works it may not be possible to carry out a fully intrusive survey for the whole school. In these circumstances, the local authority or school should consider (with the contractor, if appropriate) the extent/nature of the survey to be carried out having regard to the scope of the works. If a non-intrusive asbestos survey is carried out this will be taken into account when considering whether any asbestos subsequently discovered should have been identified in the asbestos survey. The contractor will not typically be liable for asbestos subsequently discovered where it would not have been possible or reasonable for such non-intrusive survey to have identified the asbestos in question.
- What if the asbestos has not been "identified" in the asbestos survey? The contractor will only be liable for asbestos that has been "identified" or which would have been "identified" if that survey had been properly carried out. Where the asbestos surveyor is not able to access a particular area, they will commonly make an assertion that the parties should assume that asbestos is present in this area. In these circumstances, the contractor will argue that this asbestos has not been expressly "identified" and the parties should consider, prior to entry into the contract, whether the contractor should price for dealing with asbestos in such areas (e.g. where it is agreed that asbestos is very likely to be present). If so, it may be appropriate to amend the terms of the contract to clarify that the contractor is also responsible for such asbestos and the basis on which this has been priced (e.g. whether this has been agreed as part of the lump sum or whether this should be a provisional sum which, in certain circumstances, may present better value for money for the local authority or school).
The guidance leaflet issued by the HSE contains a useful step by step guide and checklist setting out the process which should be followed for identifying and managing asbestos: