If you are a commercial client about to embark on a project, it will fall into the criteria where the CDM Regulations apply. Clients found not to be complying with the regulations are leaving themselves liable to prosecution.
NEW CDM regulations 2015.....
What are the Transitional Arrangements for CDM Coordinators?
When CDM 2015 comes into force on 6 April 2015, there will be a transitional period that will run for six months from 6 April 2015 to 6 October 2015.
For projects starting before 6 April 2015, where the construction phase has not yet started and the client has not yet appointed a CDM co-ordinator, the client must appoint a principal designer as soon as it is practicable.
If the CDM co-ordinator has already been appointed, a principal designer must be appointed to replace the CDM co-ordinator by 6 October 2015, unless the project comes to an end before then.
In the period it takes to appoint the principal designer, the appointed CDM co-ordinator should comply with the duties contained in Schedule 4 to the new CDM 2015 Regulations. These duties reflect the existing requirements under CDM 2007 for the CDM co-ordinator rather than requiring CDM co-ordinators to act as principal designers, a role for which they may not be equipped.
Schedule 4 - Duties of CDM co-ordinator during transitional period
5.—(1) The CDM co-ordinator must—
(a) cooperate with any other person working on or in relation to a project at the same or an adjoining construction site, to the extent necessary to enable any person with a duty or function under these Regulations to fulfil that duty or function;
(b) where the CDM co-ordinator works under the control of another, report to that person anything they are aware of in relation to the project which is likely to endanger their own health or safety or that of others;
(c) ensure that suitable arrangements are made and implemented for the coordination of health and safety measures during the planning and preparation for the construction phase, including facilitating—
(i) cooperation and coordination between all persons working on the preconstruction phase of the project; and
(ii) the application of the general principles of prevention;
(d) liaise with the principal contractor over—
(i) the content of the health and safety file;
(ii) the information which the principal contractor needs to prepare the construction phase plan; and
(iii) any design development which may affect planning and management of the construction work;
(e) where no or partial pre-construction information has been supplied to the CDM co-ordinator by the client under regulation 10 of the 2007 Regulations, assist the client to comply with regulation 4(4) of these Regulations;
(f) unless the information has already been provided under regulation 20(2)(b) of the 2007 Regulations, provide any pre-construction information that is in the possession or control of the CDM co-ordinator, promptly and in a convenient form, to every designer and contractor appointed, or being considered for appointment, to the project;
(g) take all reasonable steps to ensure that designers comply with their duties under regulation 9 of these Regulations;
(h) take all reasonable steps to ensure cooperation between designers and the principal contractor during the construction phase in relation to any design or change to a design;
(i) if a health and safety file has not been prepared under regulation 20(2)(e) of the 2007 Regulations, prepare a health and safety file that complies with the requirements of regulation 12(5) of these Regulations;
(j) review, update and revise the health and safety file from time to time to take account of the work and any changes that have occurred;
(k) if the CDM co-ordinator’s appointment continues to have effect immediately before the project ends, pass the health and safety file to the client at the end of the project;
(l) if a principal designer is appointed, pass the health and safety file and all other relevant health and safety information in the CDM co-ordinator’s possession to the principal designer, as soon as is practicable after the appointment.
(2) The CDM co-ordinator must not arrange for or instruct a worker to carry out or manage design or construction work unless the worker is competent or under the supervision of a competent person.
Who can be a Principal Designer?
The Principal Designer (PD) must be a designer as defined in the Regulations – i.e. anyone who as part of their business:
a) prepares or modifies a design;
b) arranges for, or instructs, any person under their control to do so.
The designer must be carrying out design in relation to a structure or some product or M&E system intended for a particular structure.
A design is widely defined to include specifications and bills of quantities and calculations prepared for the purposes of a design.
It is easy to see that taking these two definitions together, a Client might often be the designer, as might a Quantity Surveyor. The position in relation to a Project manager is not so clear and will depend whether the Project Manager is carrying out any design as defined, or engaging one of the designers directly to work for them in providing a combined project management/design function for the client.
The guidance which has been published with the draft Regulations goes a little further than this. It is important to recognise that this guidance is not ACOP, and does not therefore have any statutory force. Nevertheless, the HSE consider that “Chartered Surveyors and Technicians” are also designers. Equally, anyone who selects a product for use, or develops a detailed design which is then manufactured for a project, is also treated as a designer according to the guidance.
Regulation 5(1) requires the client to appoint ‘a designer with control over the pre-construction phase as principal designer’. The pre-construction phase is defined to include not only the work before construction starts, but any design work carried out during the course of construction.
The “control”, referred to in Regulation 5(1), relates to health and safety issues only; CDM 2015 applies only to the management of health, safety and welfare when undertaking construction projects, and not the running of the project generally, or for any other purpose.
This is stated expressly in paragraph 1 of the guidance. It is therefore quite possible for the PD to be a designer other than the lead designer on the project. It is not specified that this designer must actually be designing any part of the project, although they may be doing so. This is particularly important because by Regulation 8(2) a PD must not accept an appointment in that role unless they have the “skills, knowledge and experience and, if they are an organisation, the organisational capability” that are necessary for the role. Many lead designers will not have the skills, knowledge and experience to act as PD, as the functions required are different from those required of lead designers generally.
It goes without saying that the PD, in addition to fulfilling the criteria for a designer discussed above, must also be able to perform the functions allocated to a PD by Regulations 11 and 12.
If a designer does not have the necessary skills etc inhouse, they could engage a sub-consultant to provide the necessary support, such as a CDM-C (or Health & Safety Advisor). If that is done, the designer will still be liable for the adequate performance of the PD function, even though they have delegated the responsibility for carrying it out to the sub-consultant.
Principal Designer's obligation to 'ensure'
Understandably, one of the issues which is exercising designers at the moment is what their duty to 'ensure' as a principal designer really means. The Regulations and guidance suggest that this is an absolute obligation, which is obviously extremely onerous.
The HSE have clairified this as follows:
"The overarching duty of the PD to plan, manage, monitor and co-ordinate is set out in paragraph (1) of Regulation 11 and is qualified by the standard ‘as far as is reasonably practicable’. The paragraphs 4 and 5 below, relate to paragraph (1) and are components of that general duty and are thus also qualified by as far as is reasonably practicable.
It would be bad law to have a qualified duty supported by strict liability components. Thus the requirements to ‘ensure’ in both paras 4 and 5 are qualified to that standard."
The HSE accepts that people reading the regulations need to understand this if they are not familiar with the construction of legal provisions and the HSE will probably add in a line in the L series under the PD role to that effect.
Schedule 1 - F10 Notification information
What is the difference between item 9 of Schedule 1 - 'the time allocated by the client under Reg 4(1) for the construction work' and item 10 - 'the planned duration of the construction phase'?
"Schedule 1 item 9 refers to the time the client allocates for the whole project for which they are required to make suitable arrangements and will include preparatory investigation and design stages.
Item 10 refers to the time of the construction phase – ie construction activity (building work) actually being undertaken and the period of time from when it starts to its completion.
Both construction work and construction phase are defined in regulation 2 – which confirms their difference."
Confusion arises because item 9 refers to construction work but the Reg 2 definition of construction work does not include any reference to the time for design and preparation. We have suggested to the HSE that this is something that could be clarified in the revised L153 and the HSE agreed with this clarification.
I am a Client, but am not confident about carrying out my duties. What can I do?
CDM 2015 makes non-domestic clients responsible for some of the duties previously carried out by your CDM Co-ordinator.
- You must ensure that construction work is carried out, so far as reasonably practicable, without risk to the health and safety of workers;
- Notification of Project (Form F10) – now required prior to commencement of construction;
- Ensuring that the Principal Designer and Principal Contractor comply with their duties;
- Provide pre-construction information;
- Ensuring that a Construction Phase Plan is prepared by the Principal Contractor prior to commencement of construction;
- Ensure that there are suitable welfare facilities on site prior to and during construction;
- Ensure that H&S arrangements are maintained and reviewed throughout the project;
- Ensure that the Principal Designer prepares a Health and Safety file;
- You must take reasonable steps to be satisfied that your designer(s) or contractor(s) have the skills, knowledge and experience and, if they are an organisation the organisational capability, necessary to fulfil the role that they are appointed to undertake.
None of the above duties fall to the Principal Designer, and so you may wish to appoint a CDM adviser to assist you. This could be your former CDM Co-ordinator, if they have achieved CDM2015 accreditation from APS.
Your CDM adviser will also be able to assist you in fulfilling your duties regarding the construction phase, particularly commenting on the Construction Phase Health and Safety Plan prepared by the Principal Contractor, the Health and Safety File and the performance of the Principal Designer and Principal Contractor.
For domestic clients, the client’s duties under CDM2015 are automatically taken on by the Principal Contractor and added to their PC duties. There is an option for clients to appoint their Principal Designer to discharge the client duties particularly where their designers are involved earlier in the project than the PC. The client must appoint the Principal Designer to undertake the client duties, in addition to their own, in writing.
On larger or more complex projects Clients may wish to appoint a CDM Adviser to help them discharge their client duties - particularly with regard to:
- ensuring that construction work is carried out, so far as reasonably practicable, without risk to the health and safety of workers;
- completing and submitting the F10 Notification;
- ensuring that the Principal Designer and Principal Contractor comply with their duties;
- advising on the suitability or otherwise of the Contractor or Principal Contractor's Construction Phase Plan;
- Ensuring that there are suitable welfare facilities on site prior to and during construction, and
- Ensuring that health and safety arrangements are maintained and reviewed throughout the project.