Under the new Construction (Design and Management) Regulations 2007 clients must ensure that their proposed CDM co-ordinator, designers, principal contractor and contractors are competent, adequately resourced and appointed early enough for the work they have to do. In turn, these duty holders must assess their own competency as they cannot accept an appointment unless they are competent to do so.

The new competency test will also bite on any appointment of a planning supervisor or principal contractor under the old 1994 regulations, because unless that appointment was terminated or a new appointment agreed, it is immediately transformed into an appointment as CDM Co-ordinator or principal contractor under the 2007 regulations. However, transitional provisions allow one year for such parties to become competent in accordance with the 2007 regulations and for clients to take reasonable steps to check their competence. This period expires on 5 April 2008.

The Health and Safety Executive may take action and bring prosecutions against clients who have failed to assess or have not properly assessed either the competency of those they appoint or those previously appointed under the 1994 regulations and to which the 2007 regulations now apply. Actions can also be brought against those duty holders who have taken on an appointment and are not competent to do so (including those originally appointed under the old 1994 regulations who have failed to achieve the new standards required by the 2007 regulations).

Wragge & Co's construction experts have compiled an analysis of how competence should be assessed under the 2007 regulations, which is relevant to all duty holders including clients.

Under the new Construction (Design and Management) Regulations 2007, clients must ensure that their proposed CDM co-ordinator, designers, principal contractor and contractors (including their employees) are competent, adequately resourced and appointed early enough for the work they have to do. In turn, these duty holders must assess their own competency and that of their employees and other duty holders (except in the case of a client where the test doesn't apply) as they cannot accept an appointment unless they are competent to do so.

The new competency test will also bite on any appointment of a planning supervisor or principal contractor under the old 1994 regulations, because unless that appointment was terminated or a new appointment agreed, it is immediately transformed into an appointment as CDM Co-ordinator or principal contractor under the 2007 regulations. However, transitional provisions allow one year for such parties to become competent in accordance with the 2007 regulations and for clients to take reasonable steps to check their competence. This period expires on 5 April 2008.

The Health and Safety Executive may take action and bring prosecutions against clients who have failed to assess or have not properly assessed either the competency of those they appoint or those previously appointed under the 1994 regulations and to which the 2007 regulations now apply. Actions can also be brought against those duty holders who have taken on an appointment and are not competent to do so (including those 'transferred' from the old 1994 regulations who have failed to achieve the new standards required by the 2007 regulations).

What is 'competence'?

Competence is essentially an assessment of whether a duty holder in a particular role has sufficient knowledge, ability and experience to be able to undertake its specific work and duties. It must have the requisite experience and expertise to be able to identify and reduce any risks that could arise during construction. A duty holder's competence must be assessed with the specific project in mind – he must have the knowledge, ability and experience to be competent for the specific needs of the project.

Competence may relate not only to the key individuals involved in a project, but also to a corporate body or company.

Who assesses competence?

The responsibility to assess competence resides with all duty holders. A client, the CDM co-ordinator, the principal contractor, sub-contractors and designers all have to:

  • Take reasonable steps to ensure that all parties that they appoint are competent and have sufficient resources;
  • Not instruct a worker to carry out a task unless that worker is competent to do so; and
  • Not accept an appointment unless it is satisfied that it has the sufficient competence and resources for the needs of the project.

This means that the client has a duty to assess the competency of its appointees which will include the CDM co-ordinator, the principal contractor, directly appointed contractors and designers. One of the key duties of the CDM co-ordinator is to advise the client about the competence of its appointees.

How do you assess competence?

All parties should refer to the Approved Code of Practice (ACoP) that accompanies the 2007 Regulations for practical guidance as to how to assess and prove competence. The Health and Safety Executive website states that ACoP has "special legal status" and that "if you follow the advice in the ACoP you will be doing enough to comply with the law in respect of those specific matters on which it gives advice". There is therefore no substitute for reading and following ACoP's guidance. Pages 45-53 give written guidance as to the 'competence' obligations and appendices four, five and six set out tables and flow charts that should be used as a basis for assessing competency.

In every case, a client must assess the competency of both the organisations and individuals to be appointed, each in accordance with a two-stage process.

Corporate competence:

The client must assess an organisation by reference to its:

  • Procedures and arrangements for ensuring health and safety (a client should ask for evidence of written health and safety policies and these must in turn be checked for relevance); and
  • Experience and track record.

The above may be assessed in two ways. Firstly reference can be made to the core criteria at appendix four of ACoP. This criteria has been agreed by the Health and Safety Executive and the industry. Alternatively competence can be assessed by reference to an independent accreditation scheme such as CHAS (The Contractors Health and Safety Assessment Scheme) or SAFEcontractor run by The National Britannia Group. Organisations should provide information as to their competence with reference to the above when tendering for work.

Contractors and designers may consider preparing a 'standard' package containing this information which it regularly updates and tailors for each tender. If an organisation is unable to demonstrate that it has worked on a similar project previously, or that it has weaknesses in certain areas, it can still be appointed. This is so as long as such weaknesses or deficiencies are addressed (e.g. by employing someone with relevant expertise and/or by the company adequately demonstrating that it can assess and control all likely construction risks). If weaknesses of a principal contractor are to be overcome by sub-contracting an aspect of the work, a client would be well advised to assess the competency of that sub-contractor. If it fails to do so, the client cannot be fully satisfied that every aspect of the works included in the principle contractor's package will be undertaken by a competent person. (It should be noted here that whilst legal responsibilities under the CDM Regulations may not be sub-contracted, the actual tasks to be undertaken by a duty holder may be).

Employees should be supported by the organisation that they work for and be given proper instructions and training. Any 'on the job' training should include health and safety aspects. The attitude of an employer to such training and the existence of health and safety procedures will be an indication of an organisation's competence.

Individual competence

Key individuals should also be assessed for competence. Again, the core criteria in appendix four of ACoP should be met (specifically item five which refers to the qualifications and experience of individuals). Further, the principal contractor must assess the competency of all directly appointed sub-contractors or construction workers.

Again, a two-stage process requires the assessment of the individual's:

  1. Knowledge - to determine if they can carry out tasks safely and without risk to safety. This will include reviewing each individual's qualifications, training records and memberships of professional organisations (e.g. RIBA or CICS). Individuals should have a basic understanding of risks that arise during the course of a construction project and understand how their actions or designs may impact on the health and safety of workers on site; and
  2. Experience and track record - to establish the individual's capabilities and limitations and how to overcome any such limitations (e.g. by being supervised by a more experienced team member).

As with corporate entities if an individual cannot demonstrate competence, this need not be fatal to their appointment, as long as all weaknesses are adequately addressed.

CDM co-ordinator's competence

The CDM co-ordinator plays a key part in assisting and advising a client with regard to the competency of other appointees, but the client must first assess the competency of the CDM co-ordinator. ACoP provides specific guidance as to how to measure the competence of a CDM co-ordinator. The assessment should include consideration of the following:

  • Interpersonal, communication and management skills (to reflect the CDM co-ordinator's duties in relation to co-operation and co-ordination). A solid understanding of the construction industry e.g. of design processes (to enable them to liaise with and understand the designers and identify potential hazards) and health and safety issues on sites.
  • Knowledge of how design may impact on the future uses and maintenance of the project.
  • Experience relevant to the project to be undertaken (or supervision in conjunction with another who has such experience).
  • Membership of a professional organisation (e.g. the Institution of Construction Safety, formerly the Institution of Planning Supervisors, or the Association for Project Safety); and
  • For particularly large or complex projects, a client should consult the guidance provided at appendix five of AcoP, which is entitled 'Guidance for assessing competence of a CDM co-ordinator for a larger or more complex project, or one with high or unusual risks'.

Take note of any action points to ensure compliance.

The Construction (Design and Management) Regulations 2007 (CDM Regulations) oblige all clients to take reasonable steps to assess the competency of appointees to a project that are 'duty holders' under the CDM Regulations. They must also have undertaken and completed, by 5 April 2008, competency assessments of all planning supervisors and principal contractors originally appointed under the 1994 regulations.

Below are suggested steps that should be taken by clients to assist it in assessing competency which must always focus of the needs of the particular project and be proportionate to the risks, size and complexity of the work:

  • In accordance with the duty to appoint a CDM co-ordinator, appoint a CDM co-ordinator at the earliest possible stage (and in any case as soon as practicable after initial design work has begun) and seek written advice from them as to the competency of other appointees.
  • Every person involved in the appointment for a project should have their own copy of, or access to Approved Code of Practice (ACoP). There is no substitute for following the guidance set out in ACoP.
  • Keep separate files for each duty holder on each project. Ensure that the folder records the steps you have taken and the information you have obtained to assess competence.
  • As a minimum, write to every appointee and ask for evidence of competence. Although a standard letter may be used for this purpose it should be amended each time to reflect the role of the appointee and the nuances of the particular project. The letter may set out evidence required (i.e. by reference to the tables at appendix four of ACoP).
  • Ask the principal contractor for details as to how it appoints and assesses competence of its sub-contractors and for examples of how it proposes to manage this going forward in the life of the project.
  • If the documentation is not complete consider meeting with the appointee (and any party to whom it may sub-contract aspects of their services) to discuss past experience and specific plans and procedures they may put in place for the project.
  • When assessing competence, bear in mind the overriding principles of the CDM Regulations e.g. working together, proportionality and the avoidance of unnecessary bureaucracy.
  • If appointing a contractor or designer on a regular basis (e.g. by way of a term contract), set up a streamlined system to assess competence for each specific project.