Following on from the proposed changes to the CDM Regulations from the HSE, David Carr, MD of Callsafe Services Ltd examines whether the client is more likely to be prosecuted under the new regime.
The gun has been fired, and we are now all in the race to see if we can get the Health and Safety Executive (HSE) to address the concerns of construction health and safety professionals regarding the proposed changes to the Construction (Design and Management) Regulations (CDM). The consultation period is to be for 10 weeks, commencing on 31 March 2014.
It would be pertinent to question the HSE as to why it took them 2 years to produce the consultative document, but they are only allowing the industry 10 weeks to understand their proposals and respond with reasonable concerns.
Only 10 weeks for the consultation process?
As stated by James Ritchie of the Association for Project Safety (APS) in his article, one of the most significant proposals for the new regulations is the replacement of the CDM Coordinator (CDMC) with the Principal Designer.
CDMCs currently have 2 fundamental elements to their duties:
- To advise and assist the client; and
- To ensure the design and the Designers are compliant. It is proposed that the Principal Designer will perform the second of these duties, but has no duty to advise and assist the client in the performance of the client’s duties, except for the identification of Pre-Construction Information, that the client still will be required to provide.
The client is proposed to still have a duty to ensure the effective health and safety management of the project, as below:
Client duties for managing projects
5(1) A client must make arrangements for managing a project (including the allocation of sufficient time and other resources) that are suitable for persons with a duty under these Regulations to ensure that:
(a) construction work is carried out so far as is reasonably practicable without risk to the health and safety of any person;
5(3) A client must take reasonable steps to ensure that the arrangements referred to in paragraph (1) are maintained and reviewed throughout the project.
5(4) A client must ensure that:
(a) the principal designer complies with the duties in regulation 9;
(b) the principal contractor complies with the duties in regulations 12 and 13;
(c) before the construction phase begins:
(i) if there is more than one contractor, the principal contractor, or
(ii) if there is only one contractor, the contractor draws up a construction phase plan.
This should be of major concern to clients, particularly those who are not experienced in construction, as they will still have the duties that they have under CDM2007, but without any legally designated advice and assistance.
Will anyone provide the client with independent advice and assistance?
Other client’s duties are contained within the proposed regulations, but are not included here as they are considered to be generally reasonable for the client to perform without any specific advice and assistance, or are included in the duties of the proposed Principal Designer.
If a client organisation has its own in-house expertise on construction health and safety management and standards, they should have the necessary competence to perform the duties of a client without any external assistance, but this is not the case with the majority of construction clients.
Some questions that could be relevant to any client considering the commissioning of a construction project and the performance of the client’s duties without professional advice and assistance; are as follows:
- Would the client understand whether the Designers and the Principal Designer are properly coordinating their designs to avoid design clashes and interface issues, particularly if a number of different design organisations are involved and possibly not contractually related?
- Does the client have the ability to question the Designers and the Principal Designer as to whether they have applied the ‘General principles of prevention’ in their designs? Are the designs incorporating current standards, materials, equipment and processes to eliminate and reduce risks by their design decisions, or have the decisions been based purely on previous projects, and therefore outdated knowledge?
- Will the client be knowledgeable in discussions with the Principal Designer on what should be provided as part of the Pre-Construction Information?
- Does the client have persons within • their organisation who can assess the effectiveness of the management arrangements and systems of work to be employed by the Principal Contractor and Contractors?
- Would the client recognise an effective and efficient Construction Phase Plan? It is noted that the client is only required to make sure that there is a Construction Phase Plan prior to construction commencement, but it should contain the health and safety management arrangements for the construction site.
- Will the client be willing and able to specify or review the proposals of the Principal Designer for the content, format, copies and delivery of the Health and Safety File?
If any of the above questions result in a negative response, the client should seriously consider engaging someone to assist them with the performance of the client’s duties. This assistance is currently supplied by the CDMC.
Effective CDMCs are seen as the ‘client’s best friend’, providing independent advice on competence, pre-construction information, time, resources, the effectiveness of the management arrangements, reviewing the construction phase plan prior to advising the client of its sufficiency to commence construction, and compiling a health and safety file that is appropriate to the client’s needs.
Will the project costs be reduced?
Within the consultative document, CD261, the HSE have stated that the costs to projects with an overall value in excess of £20K, will be reduced by an estimated £30M per annum by removing the CDMC. Is this a balanced view?
If the client is going to engage a construction health and safety advisor to assist them with the client’s duties there will be an obvious cost associated with this.
The HSE have stated that the cost reduction will be due to the Principal Designer performing the duties as part of their designers’ duties; which I would dispute. It is necessary for designers to be paid for their efforts, so if they are to perform the duties of a Principal Designer they will need to be paid for this also. It is possible, or even likely, that the costs may increase as a result of the deletion of the CDMC’s duties.
Will the client be more likely to be prosecuted?
Without professional advice and assistance in the performance of the client’s duties it is probable that the number of client prosecutions will increase.
More importantly, there are grave concerns for the effective management of health and safety on construction projects, potentially causing more deaths, injuries and ill-health than would have happened without these changes.
The consultative document, CD261, Consultation on replacement of the Construction (Design and Management) Regulations 2007, and the Online Questionnaire and the Reply Form, can be found at: www.hse.gov.uk/consult/condocs/cd261.htm.
Please respond to this consultation, or we will definitely get what has been proposed!
David Carr, PgD, FIIRSM, DipSM, RFaPS, RSP
Callsafe Services Limited
Tel: +44 (0) 1889 577701