At the end of March 2014, the HSE disclosed proposed changes to CDM 2007. The main reasons for the proposed changes (to create what will become the Construction (Design and Management) Regulations 2015 (“CDM 2015”) were threefold:
- To fulfil European Directive 92/57/EEC on the implementation of minimum safety and health requirements at temporary or mobile construction sites;
- To support strategic objectives of improved co-ordination, better value for money, improved efficiency and use of technological changes in Construction 25, the Government’s industrial strategy for construction, and to respond effectively to recent Government demands to reduce regulatory ‘red tape’ for businesses; and
- To make the requirements of CDM 2007 easier to understand, which included:
- replacing the CDM co-ordinator role with just one role of principal designer;
- issuing targeted guidance instead of the previous ACOP;
- replacing the detailed and prescriptive requirements for individual and corporate competence with a more generic requirement; and
- aligning notification requirements with the requirements of the Directive, but ensuring these are applied to domestic clients in a proportionate way.
The “Old” –v- The “New”
The precursor to CDM 2015 was CDM 2007 and this was developed with several specific objectives in mind, which were set out in the related Approved Code of Practice. This stated that CDM 2007’s key aim was to integrate health and safety into the management of projects from the very start, in order to encourage the earlier identification of risks so that these can be eliminated or reduced at the design or planning stage, and any remaining risks can properly be managed.
The proposals for CDM 2015 do not seek to make wholesale changes to CDM 2007 as the general principles behind CDM 2007 have been viewed as largely successful. Instead the aim is to remove much of the bureaucracy and unnecessary complexity around CDM 2007 so that the general principles can be identified and interpreted more clearly.
CDM 2015 will come into force on 6 April 2015 and draft guidance has been produced to clarify and remind the construction industry of the general CDM principles (already stated in CDM 2007 as “co-operation, co-ordination and communication” between the different CDM roles) and to support the introduction of these new regulations. The requirements of CDM 2015 apply to both notifiable and non-notifiable projects. CDM 2015 and the guidance also clarify what is meant by a domestic client and what duties will be placed on them.
The draft guidance to CDM 2015 centres around those main changes set out above, and states the following:
- The replacement of the CDM Co-ordinator role (under CDM 2007) by the role of Principal Designer for construction work requiring more than one contractor. The responsibility for co-ordination of the pre-construction phase will be with an existing member of the design team. The Principal Designer will need to plan, monitor and coordinate health and safety in the pre-construction phase of a project including:
- Identifying, eliminating or controlling foreseeable risks;
- Ensuring designers carry out their duties;
- Preparing relevant health and safety information for other duty holders;
- Liaising much closer with the Principal Contractor than previously about how they will take on the planning, management, monitoring, and co-ordination role during the construction phase
- The role of the Client is emphasised - they are best placed to set standards throughout a project. As the head of the project, leading the appointment of contractors and designers (ensuring they have the necessary competence and experience) should be the ultimate responsibility of the Client . The draft guidance states:
“The client has a major influence over the way a project is procured and managed. Regardless of the size of the project, the client has contractual control, appoints designers and contractors, and determines the money, time and other resources available … CDM makes the client accountable for the impact their decisions and approach have on health, safety and welfare on the project.”
This will include setting the tone for communications between the different roles and parties, and ensuring that roles and functions themselves are clear. The Client is also responsible for ensuring that adequate resources and time are allocated to the different stages of the construction project, and setting out the means by which health and safety compliance will be maintained throughout the construction project by designers and contractors. An example of this is that the Client must ensure that the Principal Designer prepares a health and safety file for their project (as referred to above), and then ensure that it is reviewed regularly and amended if necessary.
Possibly, the most difficult aspect of the Principal Designer role is that the guidance states that they “will take reasonable steps to ensure that any appointed Principal Designer and Principal Contractor comply with their separate duties”, perhaps by progress meetings. What constitutes “reasonable steps” will clearly be decided on a case by case basis (considering the experience and resources of a Client, and the nature of the project) and this will no doubt provide interesting legal challenges.
- The CDM tenet of “competence” will be split into its component parts of skills, knowledge, training and experience, and organisational capability.
- Anyone appointing a Designer or a Contractor to work on a project must take reasonable steps to satisfy themselves that those who will carry out the work have the necessary skills, knowledge, experience, and, where they are an organisation, the organisational capability to carry out the work in a way that ensures safety. Reasonable steps will depend on the complexity of the project and the range and nature of the risks involved.