HSE has instead implicitly supported the use of Pas 91: 2013 Construction Related Procurement – Prequalification Questionnaires and the use of third party assessors, including those who are members of Safety Schemes in Procurement (SSIP) Forum. This of course is only one such way of assessing designer or contractor performance. The change in strategy by HSE will hopefully bring about much needed positive changes in competence assessment – it must be said, however, here was a missed opportunity for industry representative institutions to step up to the mark…the silence has been deafening.
The scope of the 2015 regulations has remained much the same as the 2007 regulations. Within Annex 1 of the TCMSD there is a non-exhaustive definition of Building and Civil Engineering Works. HSE provides a definition of ‘construction work’ in the regulations, which appears to exceed the requirement of the TCMSD, to include: ‘the installation, commissioning, maintenance, repair or removal of mechanical, electrical, gas, compressed air, hydraulic, telecommunications, computer or similar services which are normally fixed or within a structure.’ Add to this ‘the construction, alteration, conversion, fitting out, commissioning, renovation, repair, upkeep, redecoration or other maintenance…’ it is clear that CDM encompasses a wide range of activities, many of which will be carried out by in-house maintenance personnel. Surely, it was not the original remit of the TCMSD to include all and sundry under the umbrella of construction. If it was, it needs to be challenged.
Regulation 12 states: ‘During the pre-construction phase, and before setting up a construction site, the principal contractor must draw up a construction phase plan [CPP], or make arrangements for a construction phase plan to be drawn up.’ This requirement is in effect no different to the 2007 Regulations except that a CPP was only required for ‘notifiable’ projects – there is no such caveat in the 2015 regulations.
Whilst the scope of a CPP is familiar to many practitioners, the 2015 regulations bring a new dimension where even for small works a CPP is now required – arguably over implementing the TCMSD. I fail to see the logic in this as it will add bureaucracy to an industry which is already overburdened with paperwork. The HSE draft guidance L153 provides further insight stating: ‘The plan should not include documents that get in the way of a clear understanding of what is needed to manage the construction phase, such as generic risk assessments, records of how decisions were reached or detailed safety method statements.’ Does this spell the end for useless generic documents I wonder…? If only!
The premise by HSE that the ‘client is head of the supply and best placed to set standards throughout the project’ will not be challenged in industry where it is recognised the client is king. Perverse that it is, clients are often the worst offenders when it comes to compliance with the CDM regulations, safe in the knowledge the regulators frugally enforce the regulations and rarely do they ever focus on the client’s impropriety – 83 convictions against 69 defendants April 1999 to May 2014 equals approximately five defendants per annum. Notwithstanding the latter, the client role has been beefed up with the CDM-C role excluded and the client will have to subsume some of these duties – for example, the submission of the F10 notification.
Where the client is also the principal designer, which will be the case for many projects, they will have extra duties including those that would have fallen outside the scope of the CDM-C. HSE has suggested in the draft guidance L153 the client could, inter alia, prepare a Client Brief as follows:
The client brief normally:
a) sets out the main function and operational requirements of the finished project;
b) outlines how the project is expected to be managed including its health and safety risks;
c) sets a realistic timeframe and budget; and
d) covers other relevant matters such as establishing design direction and a single point of contact in the client’s organisation.
Finally, the CDM 2007 Approved Code of Practice L144, will be replaced with a more succinct version sometime in the future, but not before October this year. HSE recognised the previous incumbent was unwieldy and overly prescriptive – which is very true. Meanwhile, HSE has provided a suite of guidance aimed at specific duty holders.
Conclusion
Acknowledging that some of the requirements in CDM 2015 have been imposed on the HSE via the transposition of TCMSD, many of the new duties appear overly onerous and prescriptive. Moreover, the rationale behind HSE’s thinking just does not stack up. Now some will argue that HSE has been guilty of ‘gold-plating’ EU Directives once again – not an argument I would entirely concur with. That said, there is no doubt the complexity, structure and lack of clarity in the 2015 regulations will add significant cost and promote non-compliance to an industry where it is already ubiquitous.
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
Ray Some good analysis and insight but I do not share your conclusions. The package is less prescriptive and avoids suggesting one best way to competence etc. Clients, designers and the PD have new demanding duties but they are not “overly onerous”. Integrating design stage risk management through a PD in control at the heart of a project will I believe deliver long term savings and more effective outcomes in achieving safety through design. Domestic project designers and contractors will come in for a bit of a shock but if taken forward with a sense of proportion the outcomes will… Read more »
Phil Thanks for your comments. There are certainly some positives within the new regulations, but not too many. The problem with the CDM regs is that ‘construction’ work covers a very large remit. Better design management may be the outcome for large projects. However large construction projects are only a very small percentage of work which comes under the ambit of the regs. For many of the smaller projects which now require a CPP and H&S File this will be particularly onerous and costly for those who comply with the law – many will choose not too. As for health… Read more »