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March 19, 2008

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CDM Regulations 2007 explained

A year on from the introduction of the revised Construction (Design and Management) Regulations, John Anderson is still annoyed over what he feels are missed opportunities to really improve health and safety in the industry, and suggests how reparations can be made.

In some ways the 2007 CDM Regulations are an improvement on the original 1994 version, but it has quickly become obvious to those intimately involved in their detailed content that they are far too long; unnecessarily overlap with other health and safety legislation; are unhelpfully unclear in certain respects; and fail the test of being accessible and understandable to ordinary construction designers, managers, and employees.

The first thing that needs changing is their title, which should be the Construction Regulations 2008, for that is exactly what they are: the Regulations that apply to all construction work in this country.

CDM 1994 were often perceived as putting new duties on clients, designers, and the creation of the ‘planning supervisor’, but this revised title would unify the whole industry behind the one and only Construction Regulations applying to UK construction work.

Secondly, the legal text is just too long, and is consequently unmanageable for many of those who need to know the detail. CDM 1994 arose from the Temporary and Mobile Construction Sites Directive of 1992, and this text can be found on pages 1708-1724 of Redgrave’s Health and Safety.1 These 15 A5 pages have somehow been translated into 118 A4 pages of legal text by the HSE (as printed in Managing health and safety in construction2). Busy people in this dynamic industry who are getting practical work done, where time, cost, and quality are the main driving forces, have neither got the time nor the inclination to wade through such a mound of legalese. This long text consequently excludes many people in the industry from understanding what they really need to know and do to prevent accidents and cases of ill health in construction.

Crop the ACoP

The obvious place to start is with the 64 pages of the Approved Code of Practice (CDM ACoP). CDM 1994 contained about 15 pages of ACoP, which was visually separated from the HSE guidance at the time. CDM 2007, however, has 64 pages of ACoP, and separate industry-written guidance totalling a further 178 pages. This excess of paper could be significantly reduced by rooting out everything that is not worthy of legal attention.

For example, in para 109 it says (in part): “Designers are in a unique position to reduce the risks that arise during construction work [and]…at each stage, designers from all disciplines can make a significant contribution to identifying and eliminating hazards, and reducing likely risks from hazards where elimination is not possible.” Such general chat and words of encouragement need not have legal status conferred upon them.

The true ACoP text would turn out to be about half the size of the present one if all repetition of the Regulations themselves, passages that appear in the ACoP but not in the Regulations, and passages that seek to paraphrase the work of CDM duty-holders were removed. Another example: there are no fewer than five mini-descriptions of the work of the coordinator in the ACoP (paras 65, 84, 90, 92, and 200), each telling a slightly different story. This is neither helpful nor desirable.

CDM clients

Construction project clients are the most important parties within the CDM “team” and this is rightly reflected in the fact that the client section of the ACoP is the largest of all. One of the thrusts of CDM 2007 was the imposition of more duties and responsibilities on client bodies, but this was not matched by extending any of their powers. I would argue that the time has now come to consider specific powers for the client to stop unsafe construction work on their sites. Obviously, this would be held in reserve for situations where lives were indeed at risk on site owing to incompetence, mismanagement, or, perhaps, the significant breakdown of relationships between the CDM parties. If this happens, the client should have both the power and the duty to call a halt to unsafe working on their project.

Currently, the only body that can bring a halt to unsafe working on site under the criminal law is the HSE, by means of a Prohibition Notice, and we are reminded from time to time by the Executive of the times this has proved to have been both necessary and the main way to grab the attention of parties unwilling to take the management of risk seriously enough. However, HSE resources are increasingly limited, so this new power could be both a useful and effective mechanism for the client to have and exercise where necessary. Such a legal provision is already in place in South Africa.3

The business of delays in appointing the CDM coordinator by the client for notifiable construction projects remains a matter of concern,4 as the eventual coordinator’s work is significantly compromised if he or she is unable to influence the early work of designers and others. The particular Regulation should be amended to ensure that the very first appointment to be made by a client is that of the CDM coordinator, and only after that appointment has been made shall the client be able to appoint competent designers.

CDM designers

The first job of every designer (reg.11(1)) is to ensure that the client is aware of his/her (the client’s) CDM duties, but this is a bit of a nonsense for three reasons: firstly, there may be lots of designers writing to the client to check up on exactly the same thing; secondly, the same duty is placed on every contractor — and on a big project there may be dozens of those; and thirdly, no one has the duty of actually telling the client what his/her duties are.

It is also the case that CDM 2007 have extended the duties of designers to avoid foreseeable risks during the maintenance of permanent fixtures and fittings of a completed structure, and while “using the structure designed as a workplace”. Unhelpfully, this phrase lacks proper definition. There are very few, if any, completed “structures” that do not happen to be a workplace for someone or other. A recent CIRIA publication has made a welcome and worthwhile effort to look into this particular matter.5

Perhaps the most unfortunate problem for designers is the back-to-front nature of the one regulation pertaining to designers’ duties — reg. 11 parts (3) and (4). Para 127 of the ACoP states that “the first thing designers need to do is eliminate hazards from their designs”. This is incorrect, in that the designer has to identify what hazards might be there in the first place. The logical sequence is for the designer to look at the information that has come with the client’s brief; exercise judgement as to whether further information is required in order to proceed with his safe design; and obtain this information either from their own resources, or by requesting information from the client.

Having assured themselves of the completeness of their information-gathering the designer can then turn their mind to the hazards present and what they are going to do about them. Eliminating certain hazards may come at a cost, and that might mean negotiation between designers and their client. On the other hand, hazard elimination by designers may result in significant benefit to the client. Residual hazards will lead to the consideration of risks and then on to the business of designers exercising design choices to reduce, mitigate, or otherwise control the residual risks.

Overlying the designers’ duties in reg.11 is the duty to apply the Management Regulations’ “Principles of Prevention” (see reg.7(1)) but this does not fit easily in terms of the design process. An amended and reworded reg.11 would improve things by rendering this requirement obsolete. Because of understanding difficulties in the present text of reg.11, few designers, in the author’s experience, have a clear idea what to actually do and how to structure their approaches in endeavouring to comply. Even fewer designers have a grasp of what others are, or should be doing in other CDM roles. The words “design risk assessments” are not being uttered by the HSE any longer, but, unhappily, neither is there a clear, practical indication of what else is now expected, or needed.

CDM coordinators

CDM 2007 most certainly require a new and different person to what was required in the past, and the HSE has sensibly opted to use the word “coordinator”, as used in Article 2(e) of the 1992 Directive. Much has been written about this new role,4,6 and the job description of the post in regs 20 and 21 is a big, tough, and demanding specification, calling for the highest standards of knowledge and skills in: design process and design procurement; construction processes and procurement; health and safety in the construction industry; and communication and administration.

However, there is one glaring and important omission, and that is: coordinators have no power granted to them under these Regulations. There is little point in specifying a demanding job, with requirements for top-class industrial experience without, at the same time, giving at least basic powers. There is a direct parallel here with the position of the principal contractor who, under the Regulations, can “give reasonable directions to any contractor”.

Having created this new and demanding post of coordinator the HSE should give the role a similar power to be able to “give reasonable directions to any designer”. Presently, the coordinator only derives whatever authority they can by virtue of their appointment by their client, but this may not match the demands of the role.

One duty that I feel is totally impractical is the one requiring coordinators “to take all reasonable steps to ensure that designers have complied with their duties under regulation 11”. For the coordinator, this implies supervision, an unclear level of responsibility, and, ultimately, judgement as to adequacy of the discharge of other persons’ compliance with their separate CDM obligations. Designers should know what their duties are and how to comply, so why should it be necessary to add a further, second layer of duty on others to look over their shoulders and pass judgement — especially when coordinators have no powers in the present text to require the designers to do anything?

The ‘Health and Safety File’ is an excellent resource document required by the 1992 Directive — but this now has to be prepared by the coordinator. CDM 1994 allowed the coordinator to have the File prepared by others — and good use was made of the services of the principal contractor in this respect.

For practical reasons, this should be reinstated while retaining the duty of the coordinator to take responsibility for its final completeness and appropriateness.

Three missing provisions

There are three missing provisions from CDM 2007 — the first of which, if it were added, has the potential to make huge and significant changes and improvements to the long-term health and safety record of the industry, and that is: it should be made compulsory for accreditation bodies approving first-degree courses for future construction professionals to include in their education adequate coverage of occupational health and safety matters. As long ago as 2000,7 an undertaking was published that “the Government and the Health and Safety Commission will act to ensure that safety-critical professionals such as architects and engineers will receive adequate education in risk management”, but this never happened.8

The five UK accreditation bodies, particularly the Royal Institute of British Architects and the Institution of Civil Engineers, have been lobbied for many years on this matter. The time has come for the accreditation bodies (i.e. the professional institutions) to specify the learning outcomes they require of educational providers (i.e. the universities) and for the heads of both university departments and the accreditation bodies to be held legally accountable for making sure this takes place.

The detail is subject to debate, but no construction professional should leave any accredited undergraduate course — be it in architecture, civil or structural engineering, construction industry surveying, or construction industry project management — without having had appropriate input on this life-and-death subject. These people are the future managers and leaders of others, and this subject is just too important to be ‘left out’ for any reason.

Secondly, there is no legal duty on any person to undertake the investigation of any reportable construction accident. The time is right to remove this glaring anomaly, starting with the construction industry. The significant under-reporting of accidents has been evident from labour surveys for many years, but a valuable source of information would be created if a legal duty were made, say, on the principal contractor to investigate every reportable accident on the project, and to prepare a formal investigation report. The HSE could gain access to these reports using its existing powers. This legal provision is already in place in Canada.9

Thirdly, there needs to be some official guidance from the HSE alerting the industry to the importance of legislation other than CDM and its significance to the industry. For instance, most design practices are unaware that section 3(1) of the Health and Safety at Work, etc. Act 1974 applies to them. Most people have no idea of the extent of their personal duties and responsibilities under section 7 of the 1974 Act, nor the implications of section 40. The prospect of criminal liability is extended in the Corporate Manslaughter and Corporate Homicide Act 2007 (see Michael Appleby’s article elsewhere in this issue).

The bottom line is that it is time for some broad, well considered, and clearly drafted information and guidance for the construction industry to help those who grapple daily with the complex practical problems of compliance.

References

1 Ford, M and Clarke, J (2007): Redgrave’s Health and Safety (Fifth Edition), LexisNexis Butterworth Tolley

2 HSE (2007): Managing Health and Safety in Construction, HSE Books (L144)

3 See The South African Construction Regulations 2003 — reg.4(1)(e)

4 RIBA (2007): Guide to the Management of CDM Coordination, ed. Nick Charlton Smith, RIBA Publishing, London

5 Gilbertson, Alan (2007): CDM 2007 — Workplace ‘in use’ guidance for designers (CIRIA Report C663), Construction Industry Research and Information Association, London

6 Joyce, Raymond (2007): CDM Regulations 2007 Explained, Thomas Telford Publishing, Thomas Telford Ltd, London

7 HSC (2000): Revitalising health and safety — a strategy statement (Action Point 34, p37)

8 HSE (2004): Identification and Management of Risk in Undergraduate Construction Courses (Contract Research Report 392/2001 and supplementary report RR275, April 2004), HSE Books

9 The Occupational Health and Safety Act of Alberta, Canada, section 18(3)

http://www.hse.gov.uk/construction/cdm.htm

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