Why is UKAS’s accreditation role in current discussion in relation to surveyors?

The Work and Pensions Select Committee Sixth Report of Session 2021–22, The Health and Safety Executive’s approach to asbestos management (HC 560) on 21 April 2022 recommended:

“HSE makes it mandatory for all people conducting asbestos surveys to be accredited by a recognised accreditation body.”

Its rationale was, as follows:

“In GB an asbestos survey (which includes taking material samples) must be undertaken by a person competent to do so as set out in HSG264 Asbestos: The Survey Guide. Whilst the survey guide is goal setting in nature HSE strongly recommend the use of surveying organisations which are UKAS accredited (RG8 Accreditation of Bodies Surveying for Asbestos). HSE engages regularly with the British Occupational Hygiene Society’s (BOHS) Faculty of Asbestos Assessment and Management (FAAM); the professional group for all practitioners who manage and assess asbestos, local authorities, UKAS, surveyor groups, IOSH, trade associations and training bodies to ensure activity remains focused on ensuring standards and competence are maintained. Recognising the evidence presented at the inquiry in this area, HSE will now engage with stakeholders to consider this further and how we can collectively ensure that competence is enabled throughout the system.- HSE assesses the impact of making it a legal requirement for building owners or occupiers to commission accredited asbestos analysts to check asbestos work done on their premises and, by extension, making it illegal for asbestos removal contractors to do so In Great Britain it is a legal requirement for every analyst undertaking.”

Underpinning this was the recognition that the practice of asbestos assessment, which underpins all other aspects of compliance with the Control of Asbestos Regulations (CAR) was not a restricted activity and did not operate under a voluntary or compulsory regulatory regime. Given the risk to health and property that this could cause, the Select Committee recommended that all people conducting asbestos surveys should hold some form of accreditation.

Where does UKAS fit into this?

“Accreditation” can have a narrow or a broad meaning. In its strict meaning, it is part of the National Quality Infrastructure. The United Kingdom Accreditation Service is the only body appointed under (what was) European Law to provide conformity and other functions within the context of the Single European Market.

In the broadest sense, accreditation can mean the act of attributing or ascribing some quality, status, or action to a person or thing.

Accreditation is often used in the world of education and training to imply that a certifying or awarding body for individual certification has the authority to give those awards because of compliance with education, training and certification standards. This is relevant when we move onto consider the awarding bodies for individual qualifications.

Reviewing the Parliamentary evidence, it is not always clear whether those who submitted evidence all meant the same things when they used the terminology. However, there appears to be a strong inference that notion of mandatory accreditation of surveyors within the context of the DWP report can only mean, in this context, by UKAS.

Mandatory accreditation under ISO/IEC 17020 already exists in the context of Control of Asbestos Regulations 20 (4) Standards for air testing and site clearance certification. The method of mandating is to place a duty on the “employer” to ensure that the body undertaking the relevant work is accredited.

What standards can asbestos surveyors be accredited against?

UKAS has a role to assess and certify the competence of conformity assessment bodies. A conformity assessment body is one that performs conformity assessment activities including calibration, testing, certification and inspection in order to determine whether specified requirements relating to a product, process, service, system, person or body have been fulfilled.

UKAS, in relation to asbestos surveys applies the standards which apply to any inspection body, which is ISO/IEC 17020. So, the accreditation of surveyors under the current UKAS scheme outlined in RG8 Accreditation of Bodies Surveying for Asbestos, is the accreditation of companies, not of individuals. UKAS accredits survey bodies as being competent to undertake inspection activities in line with the general standards required of a competent inspection body in any field (as set out in ISO/IEC 17020), but interpreted to apply specifically to the world of asbestos surveying.

The accreditation of individual competence would fall under ISO/IEC 17024, if that were part of the accreditation scheme. The competence of individuals is indicated by the combination of qualifications (at present, awarded by BOHS and RSPH) and experience/knowledge/authorization, as demonstrated through the appropriate regime of audit of surveys by the survey body.

The key purposes of the ISO/IEC17020:2012 are to provide a framework for accreditation of inspection bodies:

• to demonstrate their technical competence,
• to demonstrate their independence,
• to demonstrate their reliability.

A core purpose derives from the EU concern that there is parity in how conformity with EU standards are delivered to prevent hidden barriers or subsidies to trade. Underpinning this is therefore the question of consistency with other inspection body standards across Europe.

Notably, the EU does not have a standardized approach to the assessment of the presence of asbestos, although significant preparatory work and a commitment to a Directive on the Screening and Removal of Asbestos has been promised for several years. However, this Directive would leave how competency requirements for those involved in screening buildings were determined to national authorities. Industry stakeholders would be likely to promote work to set an ISO/IEC standard to be developed, however.

What are the challenges of making mandatory accreditation work with the Control of Asbestos Regulations 2012?

The stated objective of RG8 and the purpose of accreditation is to assist duty holders in identifying bodies who are competent to inspect buildings to provide the information that duty-holders (those responsible for buildings) need to meet their obligations under the Control of Asbestos Regulations 2012 (4) Duty to manage asbestos in non-domestic premises. Asbestos surveys may also be relevant to Control of Asbestos Regulations 2012 (5), but this is not a stated objective of the scheme. This is because, in the absence of a survey provided by the duty-holder, an employer undertaking work on site may need to make an independent assessment.

While the duty on the employer in Regulation 5 must be read in conjunction with Regulation 7 of the Management of Health and Safety at Work Regulations 1999 (Health and Safety Assistance), Regulation 4 does not. This is because the power and duty to appoint a competent person by an employer does not have a corresponding power or duty for duty-holders (e.g. building owners). In the absence of this requirement, there is no direct duty to ensure that the person undertaking the assessment as to the presence and nature of asbestos risk is competent to do so. The Regulation requires that “the dutyholder must ensure that a suitable and sufficient assessment is carried out as to whether asbestos is or is liable to be present in the premises.” The Regulations apply to non-domestic buildings.

The requirement for a suitable and sufficient assessment draws us into something of a minefield. As framed, the duty-holder must ensure that a suitable and sufficient assessment is carried out. This amounts to a requirement for method and scope of assessment to meet the threshold. However, there is no existing direct duty to ensure that a duty-holder (unless also acting as an employer) uses competent help. Indeed, a duty-holder can attempt to undertake a suitable and sufficient assessment of the presence of asbestos themselves.

From a regulatory point of view, the intervention becomes the potential for prosecution is when it arises that a suitable and sufficient assessment has not been done (often discovered as a result of an incident). The liability under the regulations to prosecution is irrespective of whether the assessment has been done by a competent person, but can be avoided if the duty-holder can be shown to have taken reasonable steps to ensure a third party contractor had undertaken a suitable and sufficient assessment.

This is a different regulatory approach from imposing on the duty-holder the requirement to ensure that the assessment is made by a competent surveyor. The consequences of the different approaches are obvious. If all duty-holders could be in breach of regulations for failing to use a competent surveyor, there would be a much wider pool of potential administrative non-compliance. However, competence is not a guarantee of actually providing a suitable and sufficient survey, although it is likely to reduce the risk of that happening.

From a regulator perspective there is a requirement to consider the benefits and risks. If all surveys had to be undertaken for all buildings which could have asbestos in them by a competent surveyor, how much less likely would it be that people would be put at risk? However, the regulator also needs to consider how many duty-holders are unlikely to comply with the law and how they would ever find out.

If the way in which failure to have a suitable and sufficient survey in place is when something goes wrong, does compliance with a duty to use a competent surveyor provide a defence to a duty-holder? A regulator may struggle to justify the cost, the feasibility of enforcement and the potential benefits of imposing such a duty on all, especially if it was unlikely that it would actually lower the risk of harmful incidents. This is aside from any consideration of how to endorse or validate any statement of competence.

The inclusion of a competence requirement, akin to that which applies to employers as a result of Regulation 7, would be a significant step. Taken in conjunction with a continuing duty to ensure a suitable and sufficient assessment, it would amount to considerable raising of the stakes for duty-holders in ensuring the quality of asbestos assessments. Imposing such a duty would also create a direct link between the duty-holder and the surveyor and may have an impact on the degree to which duty-holders allow third parties to appoint surveyors and rely upon their reports.

In the absence of a competence duty requirements imposed on duty-holders, the current law continues to impose a general duty under section 3 of the Health and Safety at Work Act 1974 to conduct undertakings in a way that does not expose others to risks to their health and safety. The regulator appears to be resorting to use of this general section to pursue enforcement action against providers of services in the context of health and safety.

It already remains open to the regulator to pursue asbestos surveyors who operate their undertakings in a way that poses risk of exposure to asbestos for building-users. It is worth noting that the offence relates to how the undertaking is operated and opening up risk, rather than causing actual exposure.

Arguably, how an asbestos surveying organization is managed and the levels of competence of staff can determine the threshold for liability under section 3 in terms of enforcement against asbestos survey undertakings without further requirement for regulatory specification. In this context, it may be argued that holding and complying with the requirements of UKAS accreditation would provide a pretty robust defence to an intervention by the regulator on these grounds.

How effective is ISO/IEC 17020 accreditation in assuring standards for asbestos surveying?

As pointed out earlier, UKAS accredits to general inspection body standards and not to specific standards specific to asbestos surveying.

The key objectives of that standard that are applicable relate to competence, independence and reliability.

Competence

The ISO standard relates to ensuring that undertakings manage the competence of the individuals undertaking inspections, as opposed to certifying individuals. This is achieved through: the requirement that undertaking ensures that the personnel hold specific qualifications (awarded by BOHS and/or RSPH at the moment); and, through ensuring that their work is audited by competent people within the organization, with specified safeguards to ensure that this is carried out in an independent manner.

Independence

Independence is assured by the measures outlined in 3.2, which carry a statement about the absence of any inducement (implied or express), although no UKAS inspectable criteria and the requirement for rationales for inspection approaches and potentially compromising relationships/events to be recorded. Asbestos surveys can be carried out by Type A, B and C inspection bodies.  These are inspection bodies across the full range of independence in business undertakings as outlined by the ISO standard.  Type C bodies are expected to have independent management/reporting structures for activities which have the potential to cause a conflict of interest.

Reliability

Reliability is a considerable focus of the standard, interpreted as compliance with HSE inspection standard guidance as well as a range of quality management and assurance practices, centering around documentation and planning, but including a minimum 4% (according to RG8, although 5% is found in HSG248) resurvey requirement. Reliability in this context relates to consistency of standards across the surveying organization.

UKAS accreditation offers a valuable route to improvement of standards in the sector, but it may be worth review from a critical perspective to consider where the standard accredited to may fall short of the specific requirements of the sector.

The degree to which the standard is capable of providing protection against risk within the context of asbestos in non-commercial buildings is hard to determine. On an academic assessment, the effectiveness of the measures may be determined by reference to other questions. In the determination of how robust the training requirements are for accredited organisations, it may be relevant to ask what systems are in place for UKAS, as the accreditation body, to audit and assure the authenticity of qualifications with the awarding bodies.

BOHS, for example, is not aware of any inquiry from UKAS on the authenticity qualifications claimed by personnel over the last decade, which may be unusual when compared with inquiries from those involved in the inspection of LEV. From the perspective of audits of survey work, it may be relevant to inquire the extent to which audit standards are benchmarked across different inspection bodies to ensure consistency across the sector.

In the context of independence, the standard was not designed to operate in environments where there is a high risk of bribery and inducement. The safeguards in the standards, which focus on transparent recording and declaration of potential conflict of interests situations may mot be suitable or sufficient in the context of the industry. The mandatory accreditation to ISO/IEC 17020 in relation to Regulation 20(4) may not have been especially effective in the context of highly publicized instances of illegal practices in asbestos and demolition.

In the context of reliability, the standard sets out an approach which is relatively hard to fault. The larger the inspection body, the greater the possibility of inconsistency of approach. The safeguards in the management of quality are essential to ensure consistency of quality. However, the degree to which the standard itself contributes towards the consistency of standards from one inspection body to another may be questionable. The structure of the standard does not work well when the object inspected can be highly variable and requires a great degree of professional judgement. It may be that consistency of approach may mitigate against the proper exercise of professional judgement to ensure that assessments are suitable and sufficient, as opposed to being homogenous with a specific organisation’s model. The inconsistency of approach across inspecting bodies in the format or reporting, reporting terminology and consistency of recommendations may be an indicator that the reliability measures ensure internal consistency, but not preventing disparities in approach.

Since our exit from the EU, the parameters within which UKAS can operate and the standards it operates to are open to broader considerations than those it was appointed for. The standard that UKAS accredits to may not be as well suited to the accreditation of surveying organisations as the country might deserve. Even within the context of the existing legal framework, a move to mandatory accreditation of all surveyor organisations would need to prompt a rethink in the light of Article 8 (10) of the RAMS (Regulation (EC) 765/2008. This requires a consideration, in simple terms of the economic effect on the whole market, including SMEs. UKAS would be bound to undertake such a reconsideration, since a mandated market is likely to give rise to quite different financial and economic consequences than the current voluntary one.

Could the Government be considering an alternative approach?

The sister building risk of asbestos is fire assessment. After the Grenfell Inquiry, in recognition that duty-holders and support service providers needed competency thresholds. In addition, there appeared to be no desire to enable duty-holders to transfer the risk and obligation to service providers.

The approach adopted was to focus on the professional competency of those doing assessments, rather than how the companies who employed them managed the quality of their assessments and managed them. The Home Office led approach culminated in setting up a national standards Board, drawing from expertise across professional bodies and stakeholders and creating a competency and standards model. It is undoubtedly too early to determine whether this is a more effective regulatory approach.

However, it does address several of the problems that are inherent in the organizational accreditation model. It is, of course, the result of intense investment and scrutiny into how to avoid harm in the built environment which has seen proportionally more investment than asbestos ever has.

It is conceivable that this model, which would become familiar to building duty-holders managing fire risk could be attractive as an alternative to mandatory accreditation to ISO/IEC 17020.