James Ritchie of The Association for Project Safety highlights some potential issues arising from the new CDM Regulations regarding the client’s duties to ensure proper health and safety in construction projects.
By the time you read this, the Health and Safety Executive will have published their final draft of the proposed Construction (Design & Management) Regulations 2015. The changes to the CDM Regulations are aimed at revolutionising the way construction risk management is handled at the pre-construction stage and the new regulations are scheduled to come into force on 6th April 2015.
The word ‘revolution’ suggests a fundamental change in organisational structure that takes place in a relatively short period of time. With a transitional period of only six months it will be a swift re-structuring for many in the industry who are used to construction projects lasting, sometimes, many years. Whilst the proposed changes might induce uncertainty for some people, and panic for others, removal of the CDM coordinator by October 2015 and the placing of CDMC duties on other project team members hopefully will not mean chaos. It is important to realise that the construction industry already has people suitably equipped to manage the pre-construction health and safety process at every level of a project. For many clients that will mean appointing a designer who has experience of CDM coordination, to undertake the new Principal Designer (PD) role. Alternatively, some large clients who have in-house designers may decide to take on the PD role themselves, possibly with advice and assistance from a suitably capable CDM Adviser.
With many more health and safety responsibilities being placed on clients, but no requirement for clients to have any health and safety knowledge or experience, one of the key issues that will need addressing is the way that they receive advice and assistance with discharging their duties. For domestic projects this will not be a problem as the HSE propose to shift all of the client’s responsibilities onto the contractor, even though the contractor may not be appointed until the project has been designed and planning and building regulation permissions obtained.
With less experienced commercial clients, much heavier reliance will be placed upon the new PD appointment to ensure that the right information is available, although no explicit requirement exists for the PD to provide advice and assistance to clients. This then poses the question “Do clients just want someone to do the basic legal requirements of the PD role, or do they actually want someone who can give clients the advice and assistance required to help them avoid breaking the law?”
According to the letter of the new regulations, the CDMC’s duties to advise and assist have been scrapped and the PD just has to ensure that ‘assistance is provided to the client in the preparation of the pre-construction information’. The definition of pre-construction information has been expanded to include the planning and management of the project, but it is not clear whether the assistance has to be provided by the PD, or whether the PD just has to ensure that the client has got that assistance, possibly through an external appointment. Ah, the problems of whittling down regulations to try and make them more concise – results of the government’s ‘better regulation’ initiative!
The new client’s duties under CDM2015 mean that they must provide the following to every designer they appoint and every contractor they appoint “information in the client’s possession or which is reasonably obtainable, which is relevant to the work and is of an appropriate level of detail and proportionate to the risks involved, including information about:
(a) the project;
(b) planning and management of the project;
(c) health and safety hazards, including design and construction hazards and how they will be addressed; and
(d) information in any existing health and safety file.”
I think most people would agree that this wording is pretty all encompassing. How many clients will be capable of providing this information without advice and assistance from an experienced construction health and safety risk management specialist? How long before clients find a ‘Fee for Intervention’ invoice landing on their desk for failure to provide sufficient pre-construction information?
The recent prosecution of a firm of North East architects for their failure to give contractors relevant information about the flammability of a timber frame they were erecting on a nursing home, despite that the fact that no accident had occurred, suggests perhaps that the HSE might be considering pre-emptive strikes on designers and clients. If this is the case, then clearly design teams and clients need to either be suitably capable in terms of construction health and safety risks, or they need to be adequately advised by a specialist who is capable. Design firms may consider employing CDM Advisers in the same way that they appoint acousticians, fire engineers, access consultants and other specialists.
The HSE have given the industry six months in which to terminate existing CDM coordinator contracts. Those CDMCs who have term contracts in place, or long-duration projects, need therefore to immediately commence negotiations with their clients regarding how their commissions are to be brought to a close and the PD appointed for future projects and those that will run beyond October 2015. Likely difficulties encountered will include how to agree at what point in the project the CDMC’s work is terminated, how the PD takes over the Health and Safety File preparation halfway through a project, what happens to pre-construction information management during the design phase, the effect of termination on collateral warranties, and implications for professional indemnity insurance for both the exiting CDMC and the new PD should they not be the same firm. All of these issues seem not to have been of any relevance to the HSE when drafting their new regulations and imposing such a short transitional period.
The good news is that a large number of existing CDM coordinators will be capable of undertaking the PD role, provided that the client makes them the designer in control of the pre-construction phase and appoints them in writing.
James Ritchie BA BArch RIBA RMaPS
Head of External Affairs and Deputy Chief Executive
The Association for Project Safety
Tel: 0845 2691847