A review of the CDM Regulations 2015 – part 1
The amended Construction (Design and Management) Regulations 2015 come into force on 6 April 2015. These regulations will apply immediately apart from the transitional period of six months for the newly created role of principal designer, which replaces the now defunct role of the CDM-C. The purpose of the revision of the 2007 regulations was to fully implement the requirements in the Temporary or Mobile Construction Sites Directive (TCMSD) and to rationalise the aforementioned regulations following an industry-wide consultation process in 2014. This article will review the significant revisions contained in the 2015 statutory instrument.
The client role remains much the same with CDM regulations 2015 as it did with the 2007 regulations, but with some significant additions. First, the regulations now include a duty on the ‘domestic’ client. Many practitioners will welcome this, as there has long been a disparity between domestic and commercial construction work. However, a domestic client will be unaware of these duties. Therefore by default the duty on the domestic client will fall to the contractor where there is only one contractor or, where there is more than one contractor, the principal contractor or principal designer where there is a written agreement – which is unlikely.
Furthermore, if Mrs Jones fails to make an appointment pursuant to regulation 5 (appointment of the principal designer and principal contractor), the designer in control of the pre-construction phase becomes the principal designer and the contractor in control of the construction phase becomes the principal contractor – confusing or what?
Traditionally most construction firms working on domestic premises are small builders or even ‘one-man-band’ types. They will have very little, if any, knowledge of CDM or health and safety legislation in general, having been kept out of the loop for so long. Perpetuating the problem, domestic work typically will fall outside the threshold for notification to HSE.
Indeed the threshold for notification to HSE has changed from 30 days or 500 person days to include more than 30 days and have more than 20 workers working simultaneously; or exceed 500 person days. According to HSE, this amended threshold will reduce notifications by about 50 per cent. Whilst HSE do have powers of entry for domestic premises pursuant to s20 HSWA, inspectors will be oblivious to most of the work, which takes place in domestic premises, either from notification or empirically. This clearly gives rise for concern, particularly as the one of HSE’s stated aims of revising the 2007 regulations is to tackle issues arising from:
‘Smaller sites continue to be a particularly poorly performing sector of the construction industry, and they are disproportionately represented in the serious and fatal accident profile of the industry. The challenge of providing an effective regulatory framework for smaller construction sites remains substantial and CDM 2007 is not perceived as delivering change in this regard.’
The role of the CDM-C has now been killed off – a role which perversely was originally conceived by HSE and previously known as the planning supervisor in the 1994 regulations. In the main, the duties conferred on the CDM-C fall to a new role of principal designer. For example, the health and safety file for the project must be prepared by the principal designer during the pre-construction phase, reviewed, updated and revised during the course of the project and passed to the client at the end of the project. There are differing opinions how greatly the role of the CDM-C will be missed. In practice, it will depend on the type of project and client and whether the CDM-C was an internal entity or provided by an external organisation. Corporate clients with their own infrastructure tend to represent the role by nominating a person within their project team, regardless of the person’s knowledge of CDM or health and safety, as is their wont.
The role of principal designer has been conceived to reduce the cost of engaging a CDM-C and to ensure the pre-construction function is integrated into the project team – according to HSE. The appointment of a principal designer only applies where there is more than one contractor, or if it is reasonably foreseeable that more than one contractor will be working on the project at any time – which again is most of the time.
If the client fails to appoint a principal designer, then the client must fulfil the duties of the principal designer. However the conundrum is that it falls to the principal designer to prepare the health and safety file; clearly if a principal designer is not required and a health and safety file is, who prepares it?
The term designer is contextual as once again it depends on the type and size of the project. A designer could be an architect, civil engineer, surveyor, design company, project manager, in-house employee…all manner of different roles. Notwithstanding these descriptions, it begs the question what knowledge will they have of health and safety issues associated the pre-construction phase?
With regards to the cost of not employing a CDM-C, which was an additional requirement only if the project was ‘notifiable’ pursuant to the 2007 regulations, the principal designer will undoubtedly charge an extra premium for their services. Regardless of the pros and cons of retaining the CDM-C role, the argument is that replacing the CDM-C with the principal designer will result in significant cost savings. The HSE Final Impact Assessment estimates it will save £23 million per annum to industry, which seems to be overly optimistic. Indeed, given the extra duties which only applied to notifiable projects, the financial argument appears weaker still.
The ‘competence’ requirement in CDM 2007 has been removed and replaced in the 2015 regulations with: ‘The necessary skills, knowledge, training and experience’ – the four elements of competence, which some would argue to be nothing more than semantics. However, the real purpose of removing the competence requirement per se was HSE recognised that by explicitly supporting schemes such as CSCS it does not in itself necessarily lead to a significant improvement in standards. Indeed, other contractor registration and procurement schemes have become something of a ‘cash cow’ adding unnecessary cost and bureaucracy with very little benefit in terms of managing health and safety and contractors.
End of part one. Part two will be published tomorrow.
Ray Rapp is a chartered health and safety practitioner. He has a MA in health and safety and environmental law and an MSc in health and safety management