LBWF’s Town Hall asbestos scandal: an update and comment
Local Democracy Reporter Josh Mellor yesterday posted a story on the asbestos scandal under the amusing headline ‘Council investigating itself over former town hall asbestos’, here:
https://walthamforestecho.co.uk/council-investigating-itself-over-former-town-hall-asbestos#article
What follows is a complementary commentary, looking initially at how my own concerns have developed, before turning to scrutinize the context and substance of the council’s response.
The key moment when I realised that something was not quite right about the way LBWF was dealing with asbestos in the Town Hall occurred in July 2022.
I had asked LBWF under the Freedom of Information Act for ‘a copy of the asbestos plan that had been in place in 2015, and also copies of any later reviews up to the last day of 2020’, and in response received a single 101-page document entitled ‘Asbestos Management Procedure For Main Building Walthamstow Town Hall Complex’, created in 2013 and then modified the following year.
One problem about the latter was the fact that some important pages were incomplete, that is either not filled in and/or not signed and dated, as here:
But for me more worrying still was the strong implication that, from 2015 onwards, updating and revision had ceased, meaning that by the turn of the decade, LBWF was relying on detailed guidance about, for example, who held what responsibility, that was at least six years out of date.
Accordingly, at the beginning of September 2022, I contacted Mark Hynes, who is both LBWF Director of Governance and Law, and also monitoring officer, and asked him to investigate whether, in the past few years, LBWF had been compliant with the Control of Asbestos Regulations 2012, which describes definitively how the material should be managed in non-domestic premises, and underlines the importance of documentation and review.
After eight weeks, and some critical coverage in Private Eye’s Rotten Boroughs (see links below), Mr. Hynes forwarded a substantive response.
He reassured me that ‘the Council takes the matters you have raised concerning the Council’s Asbestos Management Plan very seriously’, and added that, as a result, he was now going to lead an internal investigation, involving liaison with ‘a number of officers, former employees of the Council and other third parties’, ‘covering a significant period of time since 2013’, and taking ‘a number of months to complete’.
That is largely where the matter stands, though the Mr. Mellor adds the further important detail that Mr. Hynes is being ‘supported’ in his work by the leading global law firm, Clyde & Co. LLP, the latter claiming to offer, amongst other things, the ‘highest quality advisory and dispute resolution services to insurers and their clients operating in both established and emerging markets’.
Three broader reflections are pertinent.
First, it is important to underline that LBWF has form when it comes to asbestos, having been successfully prosecuted in 2015 by the Health and Safety Executive (HSE) for exposing Town Hall staff and contractors to dangerous asbestos dust; and implicated two years later when it’s close ‘asbestos advisor’, NPS London Ltd., was found guilty of similar offences following building work at St Mary’s Church of England Primary School in Walthamstow (again, see links below).
Moreover, it turns out that LBWF’s recent difficulties over documentation are nothing new, since in both of these earlier cases some of the required paperwork was also either defective or missing, with, for example, the judge at the 2015 hearing castigating LBWF for its failure to maintain an asbestos register; failure to create and use an appropriate asbestos management plan; and failure to warn employees of the potential risks that they were facing.
Second, it’s reasonable to wonder whether LBWF is wise to keep the present investigation in-house.
Asked about this, the LBWF Leader, Cllr. Grace Williams, comments:
‘Mr Hynes is one of the most experienced Monitoring Officers in the country and is bound by professional obligations to uphold the rule of law and the proper administration of justice. I have utmost confidence in him that he will act with integrity and not allow his independence to be compromised’.
It is true that a monitoring officer’s duties are set out in the Local Government and Housing Act 1989, para. 5(2), and require him or her to make sure that there is complete adherence to the law. And though not universally shared, Cllr. Williams’ evaluation of Mr. Hynes talents must be heeded, as he is her close colleague.
But the real question is about public perception. Here’s a local authority with a troubling record over asbestos that may have again seriously erred. And in response, to use the current cliché, it’s going to mark its own homework. Will that really restore public confidence? If LBWF wants to prove it treats this matter ‘very seriously’, wouldn’t it be far wiser to bring in a completely independent outsider, or, better still, hand all the evidence over to the HSE, the government agency that has statutory oversight?
Third, and relatedly, it is not entirely clear exactly what LBWF ultimately aims to achieve.
No doubt, if questioned, officers would state that their objective is straightforwardly to establish the facts. But there is a hint that in addition to this they are preparing to confront future asbestos related claims by current or ex-employees. Why, after all, hire a ‘supporting’ law firm that pointedly talks up its provision of ‘dispute resolution services to insurers and their clients’, rather than one that simply offers relevant legal expertise?
Of course, some self-styled armchair ‘realists’ will retort that such a stance is understandable and indeed rational. In their view, the world is a harsh place, and LBWF has a duty to protect its finances regardless of morality.
Without doubt, asbestos claims can be costly. For example, thanks to the efforts of the team at Fieldfisher, LBWF recently was forced to pay an ex-employee compensation worth £265,000, plus private medical and legal costs, after he was diagnosed with malignant pleural mesothelioma, a devastating form of cancer linked to asbestos.
However, if LBWF really is engaged in hedging, it is reasonable to wonder why, as to some extent the horse has already bolted.
The compensation case referred to was settled largely on the basis of HSE and witness submissions made as part of the 2015 court case, and these, together with more recent material including the full range of Town Hall asbestos surveys, are safely under lock and key, and available via this blog to whoever needs them. Against this background, legitimate asbestos claims against LBWF relating to the period before 2020 will always stand a good chance of success, Clyde & Co. LLP or not.
As the foregoing illustrates, therefore, some important questions remain unanswered.
But one thing is clear. If both senior politicians and officers in the Town Hall had learnt the lessons of their earlier failings, the investigation now in progress would have been unnecessary.
And that blunt fact inevitably does little for their reputations.
PS the hierarchy in the Town Hall apparently is trying to sell the line that this is all a relatively trivial matter, merely about largely inconsequential details.
Which of course begs the question: then why mount such a substantial investigation, and bring in Clyde & Co. LLP?
As always you can count on LBWF to keep on digging…
Boiling Katie - November 13, 2022, 8:31 pm
and all the while the LB WF residents are paying the costs of this including Clyde & Clyde.