CDM Regulations – Liabilities for Project Managers
CDM Legal Liabilities of Project Managers
This brief overview raises the question of what the Project Manager’s criminal liabilities would be if their advice or omissions contributed to a Client failing to fulfil one of their statutory duties.
Ultimately, the project manager could be prosecuted through application of Section 36 of the Health and Safety at Work etc. Act 1974 (HASWA). This states that “where the commission by any person of an offence under any of the relevant statutory provisions is due to the act or default of some other person, that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this subsection whether or not proceedings are taken against the first-mentioned person.”
In other words, a PM could be prosecuted for causing a Client to breach CDM 2007 whether or not the Client is also prosecuted.
Here is an approach used by the HSE in a prosecution on 12/11/08.
Calderbrook Estates had appointed a Michael Stephenson as a roofing contractor. An employee of Stephenson fell four metres from the roof and broke both his heels. Stephenson was prosecuted for a breach of the Work at Height Regulations 2005 for having failed to arrange a safe system of work. Calderbrook was prosecuted for exactly the same offence, by virtue of Section 36 of HASWA, due to their default:
Specifically, Calderbrook failed to supervise and monitor the work which it had partly organised thereby contributing to the accident and the offence committed by Stephenson.
…..To avoid risk of prosecution under section 36 of HASWA, PMs should therefore ensure that the Client’s duties are complied with insofar as these matters are under the control of the PM.
…..The Client cannot delegate their legal CDM liabilities to the PM but should a Client breach a Regulation due to the failures of a PM, the PM could face prosecution for that breach, whether or not the Client is prosecuted.
The above is taken from an APS newsletter
For advice and assistance YOU should contact Veritas Health and Safety Consultants on 0121 249 1281 …the expert CDM Coordinators
Delivering the CDM Coordinator Services Role
How we deliver the CDM Coordinator Role
Veritas Consulting is a pure health and safety and CDM Coordinator consultancy. We operate in all sectors of the United Kingdom. A corner stone of our business is the provision of CDM Coordinator and other Health and Safety related services.
Here is our CDM C approach to Project Delivery
Project Execution
It is our intention to provide a no fuss CDM Coordinator Services that compliments the requirements of the team and the project, with a CDM C service that looks beyond the CDM Coordination; drawing on our experience of similar projects.
Methodology of our CDM C Service
Upon appointment Veritas Consulting would organize a series CDM reviews and implementation workshops to identify and agree the CDM requirements and deliverables for the project.
This includes reviewing present safety legislation and offers an interpretation and perspective sufficient for each designer to understand their duties and obligations; this being particularly appropriate for items such as façade access, plant replacement strategies, cleaning and maintenance regimes.
The process culminates with reviews of the proposed works, considering the physical constraints of the buildings involved identifying key safety issues and the risks associated.
As an option this can then be incorporated into a CDM risk register as a precursor to establishing whether the hazards could be eliminated by design; or then if this is not reasonably practicable looking at methods of combating the risks at source.
Following these workshops, as the design progresses we hold regular design review meetings to ensure that the designers are giving regard to avoiding risks to health and safety, combating sources of risk and giving priority to measures which protect persons at work during construction and cleaning and maintenance activities.
Via this mechanism we assist the team to deal with issues to help bring the project in line with the requirements of prevailing legislation and end user expectation.
Client and project manager briefings would also be held to agree reporting requirements, attendance at meetings and the execution of the commission.
We also like to discuss any FM requirements for the completed works and any integration with standing requirements for health and safety files or operating and maintenance manuals or other maintenance regimes the client may have so that we might start to progress them sufficiently to define the clients requirements and ensure as we move to a tender process that we have identified the necessary requirements to deliver the right solution.
In the same way that consideration is given to design, thought must also be given to ‘buildability’ issues.
Common to our obligation to ensure that a health and safety file is produced is our philosophy to ensure it is available at the time of practical completion, this we see as a function of our responsibilities during the entire project making sure that the file is not a ‘last thought’ and barely fit for purpose. The document needs to be thought about at the start of the project and the progress reported against at all stages with the document presented in whatever format the end user requires.
The Most Appropriate Design Solution
Some of this is reflected in our overall methodology but of particular note from our perspective would be a design solution that deals with issues such as the physical condition of the building, occupancy levels, escape routes and compartmentalization etc; consideration of clear and defined cleaning and maintenance strategies so the client can easily implement them in accordance with current Workplace H&S legislation.
Designers are required under the CDM Regulations to eliminate or reduce the risk involved in construction, cleaning and maintenance.
We see ‘our’ task as stimulating and facilitating this by helping the designers to design out hazards successfully by interrogating their design proposals at an early stage continuing throughout the design process to consider elements such as:-
(a) How the design can be built and erected safely.
(b) Where work at height cannot be avoided, design in edge protection or other features that expedite safe access and erection and/or anchorage points, etc. for nets or harnesses; and early installation of permanent access.
(c) Designing to minimize health risks with materials.
(d) Designing to simplify future maintenance and cleaning work.
During construction ongoing issues such as the use of dense blocks, heavy lintels and materials, working from height is either eradicated or kept to a minimum, avoiding where possible hand vibration syndrome operations, avoiding the use of scaffolding (an acknowledged poor performer for health and safety).
Consideration also needs to be targeted to workplace separation of pedestrian and vehicles transport, protection against noise, dust and vibration through the buildings.
Delivery of appropriate health and safety systems
Appropriate health and safety systems falls into a number of areas, these being those implemented during the design stage, those to deliver safer ‘buildability’ and those that the client and end user of the project inherit.
End users of a construction project need to be able to use the building and ensure that they can implement a safe system of work for their employees that comply with prevailing workplace legislation. These can be covered in the designer’s contract, but the CDM coordinator needs to be particularly careful to ensure that the design has properly addressed the hazards and any designer’s risk assessments for cleaning and maintenance are identified in the health and safety file.
For all your CDM Coordinator Services please email us
CDM 2007: advice to clients
As a client if you are about to alter or extend a building or structure, thinking of putting up a new one or demolishing an existing one, then the Construction (Design and Management) Regulations 2007 place a number of specific duties on you. The aim of these Regulations is to make Health & Safety an essential and integral part of the planning and management of projects and to make sure that everyone works together to reduce the risk to the Health & Safety of those who work on the structure, who may be affected by these works, or who will use it as a place or work once it’s completed.
The CDM regulations separate construction projects into two types – dependent on how long they take to build and how many people are involved. The two types are:
• Non-Notifiable Projects – where the project is likely to involve LESS THAN 30 days or 500 person days of construction work
• Notifiable projects – where the project is likely to involve MORE THAN 30 days or 500 person days of construction work If you are in doubt, you should assume that the project is Notifiable
The Regulations mostly require you to ensure that a number of things are done rather than actually do them yourself. On Non-Notifiable Projects you can ask a Designer or Contractor for assistance or you can appoint someone to help you. On Notifiable projects the CDM Co-ordinator is there to help you carry out those duties and will advise you throughout the project on what needs to be done.
On all projects you must
• Check competence and resources of all appointees (Designers, Contractors and other team members)
• Co operate and co ordinate with others involved in the project
• Ensure there are suitable management arrangements in place throughout the project to ensure that construction work can be carried out safely
• Check any workplace design will comply with the Workplace health safety and welfare regulations.
• Allow sufficient time and resources for all stages of the project
• Provide pre-construction information to designers and contractors
• Check arrangements have been made by the contractor for suitable welfare facilities
In addition on Notifiable projects you must
• Appoint CDM co-ordinator before significant design work is carried out to advise and assist with the clients duties under the regulations.
• Appoint principal contractor as soon as practicable to plan and manage the construction work.
• Make sure that the construction phase does not start unless
There are suitable welfare facilities
o A construction phase plan is in place.
• Provide information relating to the health and safety file to the CDM co-ordinator
• Retain the health and safety file and make it available to anyone who may need it in the future. You must also update it whenever necessary and hand it to anyone who acquires an interest in the building.
If you fail to appoint a ‘CDM Co-ordinator’ or ‘Principal Contractor’ you will be legally liable for their duties and will be deemed to be carrying them out and you could leave yourself open to potentially very expensive civil action and a criminal prosecution by the HSE.
Getting the right people to do what they are supposed to do under these regulations is important you need to be sure that those you appoint are competent and capable of carrying out their work on your particular project. Veritas Consulting Management’s CDM Coordinators are trained and qualified in health and safety and are registered members of the Association for Project Safety. Our staff can advise and assist you in carrying out all your duties under CDM 2007.
For Further information please contact our principal CDM Coordinator David Cant on 0121 249 1281 or visit our website for further detail www.veritas-consulting.co.uk
CDM Duties and responsibilities under the CDM Regulations.
The Construction (Design and Management) Regulations has just been changed to make it a whole lot easier to secure convictions against clients and their professional advisors. In today’s climate, Health, Safety and Welfare could be a name of a firm of caring solicitors… presumably previously trading as Sewem, Grabbit & Runn.
In the past, if you were not found guilty in a court of law, you were presumed innocent; nowadays there seems to be a presumption of escaped justice. Thus the current Lord Chancellor has made great stock out of suggesting that the difficulty in securing convictions is a reason to amend the law so that the burden of proof can become less onerous.
In the light of a number of high-profile corporate manslaughter cases where a single ‘directing mind’ could not be identified (i.e. if a suitably senior level company exec with direct relationship to the violation could show suitable distance from the chain of causality) then no-one could be held personally guilty of manslaughter.
This was deemed to be a example of how the system was failing ordinary people, as opposed to the historic perception that guilt had to be proven beyond reasonable doubt. In the light of the Corporate Manslaughter and Corporate Homicide Bill which finally made its way through Parliament in 2008 – seeks to investigate organisations for manslaughter following work- related deaths, and prosecute where relevant – justice is being amended so that culpability can be more easily assigned.
Under the Construction (Design and Management) Regulations 2007 (CDM 2007) civil liberties exemption has been removed.
CDM 2007 came into force on April 6th 2007 with an accompanying Approved Code of Practice (AcoP) published two months earlier. It has been introduced to counter a creeping blasé approach to health and safety (H&S) in the UK construction industry, where it is often a custom more honour’d in the breach than the observance: thought of by some as a form-filling exercise with little regard to its ultimate viability. However, companies now need to be more realistic and transparent in their assessment procedures and to structure their H&S Systems accordingly.
For example, a client executive delegating responsibility to an untrained member of staff will be deemed personally to be at fault in any subsequent legal proceedings resulting from health and safety infractions.
So, when do the CDM Regulations apply?
CDM 2007 applies to all projects, although ‘notifiable’ projects attract additional duties. Notifiable projects are those that last more than 30 working days or involve more than 500 person days of work (the actual number of people on site is now immaterial). Domestic projects which are carried out by ‘a client’ (i.e. a housebuilder) are also notifiable. If demolition or structural dismantling is involved, then an additional written plan showing how danger will be prevented is required.
Additionally, where project risks are higher, for example on those involving deep excavations, contaminated land and nearby high-voltage overhead power lines, something approaching a written construction phase plan will be required.
Every party involved in a project is expected to coordinate activities from health and safety viewpoints, and must cooperate with others involved in construction work on the site and on adjoining sites. Importantly, duty holders (the client, designer, etc. described below) must take account of the general principles in the Management of Health and Safety at Work Regulations 1999.
The Client
The client must ensure that workers are competent and adequately resourced, that construction work can be carried out safely, that the requirements of the Workplace (Health, Safety and Welfare) Regulations are met, and that adequate welfare provisions for construction workers are in place by the contractor as well as adequate protection for the client’s workers and the general public.
Where more than one client exists for a project, one representative can be nominated to act for all, provided they meet the requirements of the regulations.
The client can no longer appoint a client’s agent as a way of transferring health and safety duties to someone else under contract.
Under a transitional provision (one of the few in the new regulations), clients’ agents can continue for existing projects until 5th April 2012, if the agent agrees to assume the client’s duties under the 2007 regulations.
For notifiable projects, the client must ensure that a CDM coordinator and principal contractor are appointed (all must be verifiably ‘competent’ within the terms of the ACoP). The CDM coordinator may be appointed after the scheme has been declared viable provided that only nominal design work has been carried out.
The principal contractor can be appointed once the client knows enough about the project. Additionally, the client must ensure that a health and safety file is written, maintained, completed and received by the client at project handover and a suitable contractor’s construction phase plan and contractor’s welfare facilities are in place before work starts.
What happens if a client fails to appoint a CDM Coordinator or Principal Contractor?
If the client fails to appoint either a CDM coordinator or a principal contractor or both, then the role is taken on by the client by default.
The client will be required to state the amount of time available to contractors to plan the work, staff it effectively and provide necessary equipment, welfare facilities, etc.
The client must ensure that the health and safety file is kept up to date during the project and after handover, including any information required by sbestos regulations. If the building is sold, the client must hand over the file to the buyer and make them aware of its purpose.
For existing projects, a transitional provision allows planning supervisors to become the CDM coordinator and the principal contractor stays the same unless the client changes the appointments. The client had until 5th April 2008 to make sure that these people are competent persons under the 2007 regulations.
Pre-construction information must be available to designers and contractors, and this information must be factual and not speculative, e.g. ‘asbestos might be present’.
The CDM Coordinator
On notifiable projects there must be a CDM coordinator and principal contractor at least until the end of the construction phase.
The CDM coordinator’s key role is to advise and assist the client in discharging the client’s duties and handling the coordination of the project on the client’s behalf. The coordinator’s other duties (note: not functions) include:
- Advising on project management arrangements, including the appointment of others;
- Notifying the HSE at relevant stages (in notifiable projects);
- Collecting pre-construction information; Advising on the suitability of contractor’s welfare facilities and the initial construction phase plan.
The CDM coordinator must manage, review, update and hand over the health and safety file (the 1994 regulations only required the Planning Supervisor to ensure this was done). If demolition or dismantling is involved, planned written assessment of the risks and subsequent arrangements is required. So long as the file is easily accessible, it can be incorporated into a Building Regulations log book or maintenance manual.
For domestic clients, the NHBC Purchaser Manual will provide suitable information from the developer, for example.
Gone is the Association of Planning Supervisors, which has metamorphosed into the Association of Project Safety (APS). A person carrying the APS badge demonstrates suitable training to carry out the function of the CDM coordinator. While Chartered Membership of The Institution of Occupational Safety and Health (CMIOSH) signifies that the holder has competency in occupational health and safety (which is not necessarily the same thing as CDM competency, and vice versa), it might mean that two competent persons may be required to carry out a suitable audit of the premises.
For those thinking of taking up the role of CDM coordinator for a quarter percent fee, the responsibilities, risks and insurances can be onerous indeed.
The Designer
A designer’s duties apply to all projects. Regulation 18 specifies that no designer shall start work on a notifiable project – other than initial design work – unless a coordinator has been appointed and the client is aware of their duties under the regulations.
The designer has a new duty to eliminate hazards and reduce remaining risks so far as is practicable in order to avoid health and safety risks.
There is no longer any need for designers to carry out a ‘design risk assessment’. This is to encourage them to consider hazard and risk as integral aspects of the ‘design review’ process. Additionally he/she must now make sure that any workplace designs comply with the Workplace (Health Safety and Welfare) Regulations, relating to the proposed use of the structure, including risks from using private roads and footpaths, and the imagined risks arising from future construction or maintenance activities!
If a design is prepared or modified outside Great Britain, the person who commissions it is responsible for ensuring compliance with designer’s duties (Regulation 11).
The Principal Contractor
The principal contractor now has a more explicit role in managing the construction phase than under CDM 1994. Now it has to ensure that workers and sub-contractors are competent and informed of the minimum time they have to plan and prepare before start on site. Also, principal contractors must establish that they have sufficient resources in place so that (as far as is reasonably practicable) their involvement – from planning through implementation – is carried out with due regard to health and safety.
It is the principal contractor’s responsibility to make sure that the construction phase (health and safety) plan is prepared, reviewed, updated, implemented and complied with.
Need advice on the CDM Regulations call 0121 249 1281 today.
Designers Risk Assessment
CDM Designers Risk Register
A CDM Designers Risk Register is to be regarded as a management tool for the identification and elimination/reduction of hazards and risks associated with the de project. The Designers Risk register can be used to create a single document where all significant design risks can be identified, collated, monitored and ultimately reduced as part of the design process. At the end of the design process, the register will provide an audit trail of design decisions.
All CDM designers are required to analyse their designs as they develop and identify any significant hazards associated with them. As significant hazards are identified they will be added to the risk register and the relevant actions taken to reduce or eliminate the associated risks will be recorded.
As each significant hazard is reduced to its lowest practicable level, the remaining hazard and any identified control measures will be logged and subsequently communicated to Contractors via the Pre-Construction Health and Safety Information and to the end user by the Health and Safety File.
Click here to request a Designers Risk Register template
CDM Designers Risk Register its Purpose and Approach
This process describes how H&S, and when appropriate environmental issues, are taken into account as an integral part of the design process for construction projects, so that:
where reasonably practicable, design measures are taken to avoid or eliminate identified risks details of significant residual risks are communicated at the appropriate time to those who need to know progress and outputs are monitored and reviewed compliance with the CDM Regulations can be demonstrated and is auditable
Here is how to use a Designers Risk Register
List the construction activities comprising the design package or project element.
Identify the hazards and associated harmful events for each activity, package or element.
Assess the identified risks (pre-design) – Assume no design mitigations or site controls are in place when assessing the risk.
The CDM designer must always look for opportunities to avoid or mitigate risks even when the risks are considered to be normal to the type of work. Many such risks still have a high associated incident/accident rate despite being ‘well known’
A simple qualitative assessment of High, Medium or Low is all that is needed. A H/H assessment indicates a very high priority for the design to be altered. At the other end of the scale a L/L result indicates a low priority for an alteration.
Health and Safety Design Assumptions.
Record any assumptions critical to the design risk control measures taken and outline the controls that others will need to implement to ensure safe working
Information/assumptions critical to safety must be recorded, eg requirements for stability before structure/installation is complete.
The data captured is more to show that the contractor has not been left with an impossible problem and that provision has been made for a safe system of work, than it is to tell the contractor what to do in detail.
In practice there may be instances where there is ‘no reasonably practicable’ design measure that can be adopted to avoid, or reduce an identified risk (if this is the case then this is noted in the CDM Design risk register). However, it is not permitted to pass on a risk that cannot be controlled by site/implementation measures during construction or subsequent cleaning or maintenance etc.
Significant Residual Risk
Review risks (post design) and identify ‘significant residual risks’ for communication to those who need to know.
The significance of a residual risk depends on whether it is reasonable to assume that a competent contractor would expect to encounter the hazard. Eg ‘work at height’ is likely to stay a high ‘severity’ risk but will not necessarily need to be highlighted in the Plan. On the other hand a risk that has a low likelihood/severity will still need to be communicated if the contractor is likely to be unaware of it, such as when the risk is site- or project-specific or the risk is likely to be difficult to manage in practice.
If a risk has been reduced to as low a level as reasonably practicable and the residual risk is not significant then the risk can be closed-out in the risk register.
Residual risks may also be highlighted in the register in order to signify their status and highlight those requiring particular attention by contractors. For example, a residual risk that is ‘significant’ (ie unusal, unexpected, adbnormal or difficult) but which can nevertheless be controlled on site by standard best practice, such as method statements, permits etc is highlighted as Blue.
A significant residual risk that will require particular attention over and above standard best practice is highlighted in say red. ‘Non-significant’ risks should not be highlighted, eg in say green, because to do so might imply that no site controls etc are required. This may not necessarily be the case if the risk, such as ‘work at height’, although usual and expected is still a major hazard requiring proper site controls.
Note – Do not rely upon measures that will be taken on site to control hazards, always seek to alter the design.
CDM Designers Competence
It is assumed that all CDM Designers are familiar with:
- their duties under the CDM Regulations
- the principles of design risk assessment/management
- relevant construction/maintenance processes and associated H&S risks
Click here to request a Designers Risk Register template
For a CDM Designers Risk Register Template please contact us
How to apply for a CSCS Card Health & Safety CSCS Test
The fastest way to book a CSCS Health and Safety Test & get your CSCS card today?
The fastest CSCS Card Test booking system available anywhere is here CSCS Card Test . We have access to over 350 test centres nationwide and on average book over 50 CSCS Tests daily. This very easy to use CSCS Card Test booking system is used by some of the finest companies in the UK and abroad, and host of Directors, Managers, Supervisors and site Workers wanting a fast track route to their CSCS Card Health and Safety Test. > Click here to book your CSCS Card Test ow >
How long do I have to wait get my CSCS Health and Safety Test?
You can simply be in front of a test screen within 3 days from making your booking and payment for your CSCS Card Test.
Where can I take the Health and Safety Test?
You can take the CSCS Card Health and Safety Test anywhere you like! There are over 300 CSCS Card test centre’s in the UK, so you are able to book your health and safety test where close to where you live or even near to where you work, it’s totally up to you.
How do I prepare to take the CSCS Card Test?
So that you pass first time we can provide you with a CSCS card health and safety training just call FREE 0800 1488 677or visit our website and send an email CSCS Card Training and we will make sure this happens so you don’t waste your money on re-tests over and over again.
How do I take the CSCS Card Test?
The CSCS card test lasts for 45 minutes. But you can finish the test once you have answered all the questions. 45 multiple choice questions will appear on a computer screen and you just touch the answer you feel is the correct one. No computer skills are needed.
How difficult is the Health and Safety Test?
The health and safety test will cover questions related to your day-to-day job on a construction site. However, you will be expected to have knowledge on construction health and safety procedures.
How do I prepare for the CSCS card test?
Probably the best way to prepare for the CSCS Test is by purchasing a Construction Skills Health and Safety test training book or CDM Rom.This is an excellent source of information to help you get through the test. Or you can attend one of Veritas Consulting Healthy and Safety Test training days which will prepare you for the test.
What if I do not pass the CSCS test?
Don’t worry – you can take the test again and again. In case you fail consider obtaining the Construction Skills Health and Safety test training book and put in some time and effort revising prior to re-sitting your CSCS card test if you did not do so before.
How do I apply for my CSCS Card?
Pass the Construction Skills Health and Safety Test first, once you have done so, you will want to get your CSCS Card as soon as possible to do this you can contact the Construction Skills who will explain how you can get the correct card for your occupation.
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