Retired HSE inspector Martin Thurgood gives his thoughts on the role of ‘Domestic Client’ in the revised CDM Regulation
Perhaps the most damaging aspect of the proposed Construction Design and Management (CDM) Regulation revision is the golden opportunity that it offers to the ‘elf and safety’ critics. They will be up in arms about the idea of millions of home owners being ‘responsible for site safety’ and open to criminal prosecution. Perhaps they are right.
The benefits that uninformed domestic clients can bring to construction safety are vanishingly small, but the dis-benefits to workplace health and safety from a media chorus criticising ‘new CDM’ would be highly damaging across the board.
The issue then is how to implement the “Construction Sites” Directive 92/57/EEC without falling into the trap. There are two obvious options. Option one: Challenge the European Commission on their interpretation of the Directive. Option 2: Draft the new regulation in a way that avoids criminalising domestic clients.
Option one is potentially arguable, although the foundation for the argument is complex. It turns on the Article under which the ‘Construction Directive’ was made; Article 118a to the Treaty establishing the European Economic Community. The key point is that 118a is about the working environment: it is not about ordinary householders or the interface between them and the world of work. It could be argued that any requirement in a directive that seeks to put obligations on those outside the working environment is beyond the scope of Article 118a and goes beyond the intentions of the Treaty.
As to Option two, while the current draft of the proposed new regulation provides for situations where domestic clients fail to carry out their duties — essentially by passing them on to another duty holder — the draft does not say that such domestic clients are not in breach of their duties: they would be open to criminal proceedings. There are means for resolving this: it is to ensure that ‘New CDM’ breaks the link that would make such a failure to act a breach of duty that is a criminal offence and subject to a criminal penalty. This approach, though unusual, is not without precedent. There would also be the need to address concomitant civil liabilities. The new CDM Regulation could accommodate such an approach.
The good news is that I have received a letter from the Rt Hon Mike Penning MP, the recently replaced DWP Minister of State, offering his reassurance that the revised regulation’s aim is to protect private individuals from criminal liability as construction clients, while at the same time providing for satisfactory transposition of the European Directive. So it seems like Option two might be the way forward.
Well written Thanks. As in most EEC policies, there are areas dealt with by less than professional practitioners. Frequently pushing ‘improvements’ that don’t justify the effort put into the process. How often has a minister, rightly or wrongly, given assurances that have no backbone. What of the infirm pensioner who requires to have repair work carried out e.g. on the roof, and has never been involved in safety. Most would have no knowledge that there were such requirements. Without the understanding or skill to implement these new CDM rules. what would be the result. A criminal conviction would result in… Read more »
Firstly, as a Spanish I may confirm that regulations that transpose the subject Directive into our national legislation exempt home owners from complying with it. Secondly, as far as I have been able to surf in the German regulations, it would appear that by appointing a project supervisor, home owners discharge all their responsibility and liability that passes over to the supervisor. Let us be sensible, it is a tremendous burden for home owners to take any responsibility, even the one of appointing a project supervisor. The only exception I would allow would be home owners that build detached houses… Read more »
I endorse Option 3 by Steve – otherwise why do we carry out SSIP Stage 1 processes to ensure that contractors are fit for purpose and hold all the skills towards H&S (if not they employ the services of a H&S Practitioner – again a competent one who is registered with SMAS/CHAS/Safe Contractor, etc). You can ot push this onto a domestic client (albeit I’m sure some ‘commercial clients’ will try to be domestic to avoid responsibilities!!).
I fail to see the issue. Because Reg.4 reassigns duties of regs 5,7 and 8 and 6 is excluded there are few client risks other than failing to warn of existing hazards (negligence in any court). One might argue a domestic cleint trying to design themselves, without competence, but then, the contractor is required to check and advise competnce and ensure construction (including future maintenance) is safe. The only risk would seem to be Reg.11 which perhaps needs thought for the domestic client.
Option 3: Place all responsibility for every aspect of H&S on the contractor who supplies the work (goods & Services), after all, if I as a domestic client or business owner had the wherewithal to carry out the task, I wouldnt need the contractor in the first instance. If a contracor is tendering for the work then he should be properly qualified in all aspects of that work, H&S included!