Asbestos compensation timebomb for academies

Academy and free school governors have been warned that they are legally and financially liable for cases of asbestos exposure in their schools.

Campaigners have tabled a series of Parliamentary questions in a bid to discover to what extent schools are insured if pupils who are exposed to asbestos and later develop mesothelioma – a cancer related to the deadly material – go on to make a claim for compensation.

In its responses, the government has confirmed that, in general, schools cannot obtain public liability insurance that will cover them for pupil asbestos exposure risks. However, while local authorities can “self-insure” to cover their schools, many academies and free schools do not have the resources to do this.

The pressure has come from the Asbestos in Schools (AiS) group, which campaigns for the removal of all asbestos from schools in the UK. Up to 75 per cent of schools contain the material to some degree.

Answering a Parliamentary question earlier this year, schools minister Nick Gibb said: “Discussions with insurers indicate that asbestos is not considered to be a barrier to obtaining employer liability insurance, though there is a general asbestos exclusion for public liability insurance.”

The AiS also says that some academies have been led to believe that they have full public liability insurance to cover pupils for asbestos exposure risks when in fact “the wording in policies fails to give that cover”. An AiS expert confirmed that “it is unusual to find that cover for injury or death caused by asbestos is covered” in public liability insurance.

Michael Lees, one of the founder members of the AiS, fears that because mesothelioma can take years to develop after exposure to asbestos, this loophole could result in academies facing claims for compensation from former pupils in 10 or 20 years’ time.

More than 1,800 schools have been converted to academies so far with education secretary Michael Gove aiming see every secondary school take up academy status by the end of the Parliament. The AiS is pushing the Department for Education for guidance on the issue of insurance.

A second Parliamentary question last month pressed Mr Gibb on liability in academy trusts. The schools minister replied: “An academy trust is a corporate body so its members should not be held personally liable provided they act reasonably and in good faith. Responsibility for actions and decisions, therefore, lies with the whole academy trust rather than its individual members.

“Academy trusts are required to have governor liability insurance with a minimum cover of several million pounds. This insurance covers the collective liability of the academy trust acting in good faith.”

However, Mr Lees hit back. He told SecEd: “The schools minister implied that in the absence of public liability insurance the governors’ liability insurance will meet any future claims. This is incorrect. Governors’ liability insurance is not meant to be a catch-all insurance and will not normally provide cover for other uninsurable risks.

“How many governors in academies are aware that they will be legally and financially liable for any future mesothelioma claims from their pupils?”

A third Parliamentary question earlier this month, pushed Mr Gibb on whether pupils and non-employees would be covered for public liability exposure risks in academies. Mr Gibb replied: “Academies and free schools are autonomous institutions and, as such, are responsible for making their own arrangements for insurance. 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.

“However, 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.”

It comes after the Supreme Court last year delivered a landmark judgement when it upheld that Dianne Willmore, who died from mesothelioma in 2009 aged 49, had been negligently exposed to asbestos while a pupil at her secondary school in the 1970s. The case resulted in compensation of £240,000. 

Ms Willmore’s solicitor, Ruth Davies, said: “If a pupil is exposed and develops asbestos cancer 30 or 40 years later, there is no-one to pay compensation to them or their families. This leaves a hole in the legal system which must be remedied.” Mr Lees added: “Although the status of the school has changed, in most cases the school buildings have not. Therefore many academies contain asbestos. This is a major problem that affects thousands of children and large numbers of unsuspecting governors.

“If the risks from asbestos to children in schools are so great that they are uninsurable, then it should send a very strong message to the government that there is no place for asbestos in our schools.”

Julie Winn, chair of the Joint Union Asbestos Committee, added: “This is potentially a very serious loophole for mesothelioma victims. Things can and do go wrong when it comes to asbestos management even with good systems in place. Employers must provide protection for their employees, in case things go wrong, by way of employer’s liability insurance. Surely children learning in our nation’s schools should also be afforded this fundamental protection? This issue must be properly investigated and, if necessary, remedied.”

It comes after a report by the All-Party Parliamentary Group on Occupational Safety and Health earlier this year labelled the asbestos situation in schools a “national scandal”.

More than 140 teachers in the UK have died from asbestos-related diseases in the past 10 years and the report urged the government to undertake the phased removal of asbestos from all schools. 

It also said that parents and school staff should be annually updated on the asbestos in their schools and the measures being taken to manage it safely.