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 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 coordinators 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.
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 0800 1488 677 today.