In December 2020, HM Assistant Coroner for Inner South London, Philip Barlow, concluded that air pollution contributed to nine-year-old Ella Adoo Kissi-Debrah’s death in 2013. Thomas Herbert’s blog on that decision can be read here. The Assistant Coroner has now issued a Prevention of Future Deaths report dated 20 April 2021, which can be read here. This comes against a background of mounting pressure on national and local government to reduce air pollution levels as set out in the authors’ recent blog, which can be read here.

This latest development emphasises the need for action not just in relation to the regulation of air pollution levels but also to raise public awareness of the risks of air pollution exposure.

Background

Ella Adoo Kissi-Debrah was born in January 2004. She lived just 25 metres away from the South Circular Road in Lewisham, south-east London. From an early age, she had severe, hypersecretory asthma causing episodes of respiratory and cardiac arrest and requiring frequent emergency hospital admissions. She tragically died in February 2013 from a cardiac arrest caused by such an episode.

Having heard extensive expert evidence at the inquest into her death, the Assistant Coroner, Mr Barlow, concluded that air pollution (principally from traffic emissions) was a significant contributory factor to both the induction and exacerbations of Ella’s asthma.

There was no dispute at the inquest that air pollution is the cause of many thousands of premature deaths every year in the UK.

The Assistant Coroner’s Concerns

In his Report, Mr Barlow set out three areas of concern:

  • Concern 1 is that the UK’s national limits for particulate matter are set at a level far higher than the World Health Organisation (“WHO”) guidelines.
    • It was noted that the evidence at Ella’s inquest was that there is “no safe level” for particulate matter and that the WHO guidelines should be seen as “minimum requirements”.
    • Lowering national limits to the levels recommended by the WHO would, on the basis of evidence heard at the inquest, reduce the number of deaths from air pollution in the UK.
    • This concern falls to be addressed by the Department for Environment, Food & Rural Affairs, the Department for Transport and the Department for Health & Social Care.
  • Concern 2 is that there is a low level of public awareness of the sources of information (such as the UK Air website, discussed below) about national and local pollution levels.
    • Mr Barlow’s recommendation is that greater awareness of such resources would help individuals to reduce their personal exposure to air pollution.
    • The evidence at the inquest was that efforts to increase awareness need to be made by both national and local government. These efforts are likely to require an enlargement of the capacity to monitor air quality, for example by increasing the number of air quality sensors.
    • This concern falls to be addressed by the above Departments as well as the Mayor of London and the London Borough of Lewisham.
  • Concern 3 is that the adverse effects of air pollution on health are not being sufficiently communicated to patients and their carers by medical and nursing professionals.
    • The evidence at the inquest was that this issue needs to be addressed at three levels: (i) undergraduate; (ii) postgraduate; and (iii) by way of professional guidance.
    • This concern falls be considered by: (i) the General Medical Council, Health Education England and the Nursing & Midwifery Council; (ii) the Royal College of Physicians, the Royal College of Paediatrics and Child Health, the Royal College of General Practitioners and the Nursing & Midwifery Council; and (iii) the National Institute for Health and Care Excellence and the British Thoracic Society.

All of the above bodies are under a duty to respond to the Report within 56 days with details of actions taken or proposed to be taken, with a timetable for action, and an explanation (if applicable) for the lack of any proposed action. 

Wider Context

Mr Barlow’s Report comes just one month after Commission v UK (Limit Values – Nitrogen Dioxide) [2021] EUECJ C-664/18 (see the authors’ blog here) in which the Court of Justice of the European Union (“the CJEU”) declared that the UK had breached its obligations under the Air Quality Directive. The takeaway point from both Mr Barlow’s Report and the CJEU’s recent decision is that the UK Government must take a more robust approach to air pollution. Both the CJEU decision and Mr Barlow’s Report have flagged up a need to adopt legally binding measures to address air quality.

So, what is the UK Government doing? The Government has cited pressures on Parliamentary time caused by the COVID-19 pandemic as the reason for delays in the enactment of a landmark Environment Bill 2019-21. The Bill is intended to, inter alia, introduce measures to reduce emissions from domestic solid fuel burning (the largest contributor of fine particulate matter emissions), introduce a power to compel vehicle manufacturers to recall vehicles for environmental non-conformity and strengthen the ability of local authorities to address air quality issues. Further detail can be found here. The Environment Bill will provide a long-overdue update to environmental and air quality laws which date back to 1995 and 1993.

Mr Barlow has also called for greater public awareness about the sources of information on pollution levels to help individuals reduce their personal exposure to air pollution. This is something that campaigns like Clean Air Day are striving for: how many of us are aware that air pollution causes up to 36,000 deaths in the UK every year?

The UK Air website was specifically recommended in Mr Barlow’s Report and allows users to enter their postcode and find a Met Office forecast of the pollution levels in the local area. This Guide to UK Air Pollution Information Resources (published in June 2014) sets out the key sources of public information on air pollution and suggests action that can be taken when levels of air pollution increase, such as reducing levels of exercise outdoors and avoiding exertion. While many of us will check the rain forecast before going outside, it may soon be the norm to check air pollution forecasts before deciding to go for a run.

Patrick Limb KC and Thomas Herbert explored the above issues, and others, in their March 2021 webinar on ‘Clean Air and Tort Law‘. To view the webinar recording, please click here.

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