Government Inquiry into use of RAAC expanded to UK’s wider public estate

Reinforced autoclaved aerated concrete (RAAC) is a lightweight form of concrete which was often used in constructing low-rise, public sector buildings, such as schools, hospitals, housing, offices, leisure facilities and military buildings between the 1950s and the 1990s – although not all of these buildings remain in the public sector.

Although it was thought to be a viable alternative to traditional concrete at the time, it has been recognised for several years now that RAAC has a shelf-life (of around 30 years) and is prone to structural failure. The issue came to light in 2018 following the sudden collapse of a roof at a primary school in Kent, just 24 hours after signs of structural stress appeared. Earlier this month (June 2023), another four schools in Kent were forced to close temporarily following safety concerns.

Significant concern has been building for some time: The Local Government Association is advising its members to check as a matter of urgency whether any buildings in their estates have roofs, floors, cladding or walls made of RAAC. In December 2022, the Department for Education published a guide to help responsible bodies to identify RAAC and develop a remediation strategy (and although intended for schools, this guide is useful for identifying RAAC in all buildings). The Department of Health and Social Care has also already announced funding for the replacement of a number of RAAC built NHS Trust hospitals under its New Hospital Programme.

The government launched an inquiry into the use of RAAC concrete last year, mainly focussing on schools but it has now been reported (15 June 2023) that this inquiry is to be expanded to include the entire public estate; a significant increase in scope.

The Law

The Health & Safety at Work etc Act 1974 (the ‘1974 Act’) sets out general duties on organisations which are employers and/or have some control over premises. Generally speaking, most organisations will have a duty to ensure, so far as is reasonably practicable, the health, safety and welfare of its employees and others who may be affected by its work (which would include any members of the public using the building).

The risk of collapse caused by RAAC is highly likely to constitute a breach of the 1974 Act and, were a collapse to lead to a fatality, depending on the facts, there is the potential for corporate manslaughter charges. Breaches of the law are criminal, serious and fines issued by the Court often run into the millions of pounds. Whilst public sector bodies are eligible for a ‘substantial reduction’ in fines, in HSE v London Borough Council of Havering (2016), the local authority was unsuccessful in its attempt to reduce its £500,000 fine because the figure was deemed to be fair and proportionate in the circumstances.

Practical Points

The severity with which buildings are affected by RAAC (once identified) is likely to vary. Whilst the new-build/change of premises option may be available to some, the development of remediation and risk management strategies is likely to be the way RAAC is managed in many buildings in the short to medium term. Our Health and Safety law team have experience in advising on the complexities of RAAC risk management for a number of years, which means we understand the challenges of running public services whilst carrying out crucial safety works on-site. Some of the key considerations we can advise on include:

• Ensuring you have specialist, technical support from surveyors and other competent individuals including adopting a risk-based approach to remedial works. This is likely to be on-going with regular surveys and monitoring
• Making sure your Board / senior leadership team are fully aware of the Health and Safety legal duties on the organisation, as well as on them personally
• Governance and reporting
• Liaising with the Regulator and insurers
• Support on communications with staff and members of the public about the risk, including the adoption of escalation procedures and emergency preparedness plans
• Implications under the Building Safety Act 2022
• Procurement processes for appointing contactors, and
• The importance of an audit trail

At this stage it is difficult to anticipate what the outcome of the government inquiry into RAAC will be, but it is likely that additional guidance will be introduced on how to mitigate the risk of harm.

For more information on this topic, please contact Adam Kendall, Partner, Melissa Stanford, Senior Associate or Louise Ducasse, Trainee Solicitor.