Omar Amin from the Construction team reviews the key changes for health and safety risk management in construction projects brought in by this significant piece of legislation.
The Construction (Design and Management) Regulations 2015 (CDM 2015) came into force on 6 April 2015. CDM 2015 intends to simplify the 2007 Regulations, making them more accessible and ultimately more effective in ensuring the proper health and safety risk management in construction projects.
What are the key changes brought in by CDM 2015 and how, in practice, will this affect new projects and those already underway?
1. CDM 2015 abolishes the role of CDM Co-ordinator, introducing the new role of 'Principal Designer':
- The Principal Designer must be a designer as defined in CDM 2015 and will be responsible for co-ordinating health and safety in the design and pre-construction phase.
- The Principal Designer has a duty to plan, manage and monitor the design and pre-construction phase to ensure the project is carried out without risk to health or safety.
- It is envisaged that the role will be delivered through a pre-existing member of the design team, rather than an external 'add on'.
2. Notification: under the Constructions (Design and Management) Regulations 2007 (CMD 2007), a project was notifiable to the Health and Safety Executive if the construction phase was likely to last more than 30 days or involve more than 500 person days of construction work. CDM 2015 makes a project notifiable if construction work is scheduled to last longer than 30 working days and involve 20 or more workers working simultaneously, or involve 500 person days of construction work. This may reduce the number of notifiable projects (however, see point 5 below).
3. Competence: CDM 2015 moves away from the heavily criticised and complex previous approach to competence. This is now assessed in relation to the duty holder's skill, knowledge, experience and organisational capability.
4. CDM 2015 also abolishes the Approved Code of Practice, replacing it instead with targeted guidance (currently only in draft form).
5. CDM 2015 applies to "domestic" clients too. This means any person for whom a construction project is carried out (even if on their own private residence) will be caught providing the project is notifiable. It remains to be seen how this change may impact small domestic projects.
6. In addition, as a client you are now responsible for notifying the Health and Safety Executive of a notifiable project and you must ensure that the construction phase plan and health and safety file are produced by others.
Projects already underway: Transitional provisions
CDM 2015 includes transitional provisions which will apply for projects already underway (be that the design or construction phase):
- For projects where the construction phase has not yet started and a CDM Co-ordinator has not been appointed, as the client you must appoint a Principal Designer as soon as practicable.
- If a CDM Co-ordinator has already been appointed, as the client you must appoint a Principal Designer to replace the CDM Co-ordinator by 6 October 2015 (unless the project comes to an end before this time).
- In the time it takes to appoint the Principal Designer, the CDM Co-ordinator's duties continue as per the CDM 2007 requirements (as amended by the transitional provisions in CDM 2015).
Introduction of the new role of Principal Designer has created some practical issues:
- Competence: given the requirement for the Principal Designer to be a 'designer', it is unlikely that current consultants offering exclusively CDM Co-ordinator services will have the requisite competence to satisfy this role.
- Expertise: furthermore, as a client CDM 2015 requires you to take reasonable steps to satisfy yourself that any Prinicpal Designer you appoint has the necessary skill, knowledge and experience to perform their duties. As a result, it will not be sufficient to simply treat an existing CDM Co-ordinator as suitable for the role of Principal Designer.
- Ongoing obligations: CDM 2015 also places an ongoing obligation on you as a client to continually check the performance of the Principal Designer to ensure they are properly performing their duties.
- Solutions: practically, it seems logical to 'tack on' the role of Principal Designer to a current member of the design team, extending the schedule of services in their appointment. In doing so, an existing CDM Co-ordinator's appointment may simply be brought to an end, or it may be that the CDM Co-ordinator continues as a health and safety adviser by being appointed as adviser to the Principal Designer. The latter option may be subject to the relevant consultant's capability to satisfy the obligations under CDM 2015.
CDM 2015 was heralded as a key part of the UK government's "red tape" challenge, however it remains to be seen whether CDM 2015 will simplify health and safety procedures required on construction projects in the UK. In the interim, clients should pay careful attention to the changes, particularly given the increased nature of their obligations under CDM 2015.