CDM 2015 legal considerations

From 6 April 2015, the new Construction (Design and Management) Regulations will have widespread effect, applicable to all construction projects in Great Britain. CDM 2015 will apply whether or not a project is notifiable. There are no small project exemptions and domestic clients are now within the scope of the regulations. The fundamental change is the requirement for a principal designer (PD) in place of a CDM co-ordinator (CDMC).

Assessing the competency of duty holders is now based on the skills, knowledge and experience of individuals and also, for organisations, their organisational capability: this means the policies and systems implemented to set health and safety standards and the resources and people to ensure the standards are delivered.

CDM 2015 applies to a number of parties or ‘dutyholders’, charged with responsibilities for health and safety:

Clients including domestic clients. (see CDM 2015 client duties)
Designers. (see CDM 2015 designer duties)
Principal designers. (see CDM 2015 principal designer duties)
Principal contractors. (see CDM 2015 principal contractor duties)
Contractors. (see CDM 2015 contractor duties)
Workers. (See CDM 2015 worker duties)

It is possible for one party to be appointed as more than one dutyholder.

CDM 2015 imposes greater responsibility on clients for health and safety due to their pivotal role in influencing the procurement and management of construction projects. The clients’ duties include:

Ensuring they provide pre-construction information, for example, structural drawings, the health and safety file and any asbestos surveys to all contractors and designers.
Ensuring the sole or principal contractor prepares the construction phase plan.
Ensuring the principal designer prepares the health and safety file.
Where there is more than one contractor the client must appoint a principal designer and a principal contractor before construction work begins otherwise the client must fulfil those duties. As the definition of “contractor” includes subcontractors it is likely that all commercial projects will be caught by CDM 2015.

However, domestic clients’ duties will normally be transferred to the contractor on a single contractor project or to the principal contractor on a project involving more than one contractor. Alternatively, domestic clients can choose to have a written agreement with the principal designer to carry out the client duties.

The fundamental change introduced by the regulations is the creation of the new principal designer role, intended to embed health and safety into the heart of the design process. The principal designer must be a designer and can be an organisation or individual who has influence over the early design stages. The principal designer is appointed by the client before construction begins if there is more than one contractor appointed on a project and will have has a duty to plan, manage, monitor and coordinate health and safety during the pre-construction phase of the project. This phase can continue once construction begins if design is still being undertaken.

The principal designer’s role involves liaising with the client and principal contractor and co-ordinating the work of others to ensure foreseeable risks are managed throughout the design process. The principal designer may also have separate duties as a designer.

All duty holders must be guided by the principles of prevention to control health and safety risks, summarised as:

Avoiding risks where possible;
Evaluating those risks that cannot be avoided; and
Implementing proportionate measures that control risks at source.

In terms of preparation for the new Regulations if you are likely to be one of the dutyholders, the following should be considered:

The Health and Safety Executive (HSE) have produced guidance to help you familiarise yourself with the new requirements- especially the principal designer role.
The Construction Industry Training Board (CITB) has published guidance documents written by the Construction Industry Advisory Committee (CONIAC) with small businesses in mind.
Review the terms of your appointment to check whether it reflects the new role; check your scope of services to see whether you are able to discharge the new duties and consider the impact on fees and programme (if any).
Check the terms of your professional indemnity insurance cover to see whether you are covered for the new roles and duties and if not consider seeking an extension to your cover.
Assess your organisation’s current organisational capability, perhaps by arranging for an assessment by an independent third party.
Consider the appointment of a CDM co-ordinator as a subconsultant. It will be necessary to ensure that the subconsultant has the knowledge, skills and experience to provide the relevant services as any breaches by subconsultants are generally considered to be breaches of the consultant. The prospective subconsultant should also carry sufficient professional indemnity insurance.

All duty holders must be guided by the need to make a proportionate effort commensurate with the anticipated risks. One of the most significant changes is the client’s duties: the Client has greater responsibility - absolute obligations to perform and is a duty holder by default.

The success of projects will partly depend on who takes up the role of principal designer. This is likely to be the lead consultant or architect. It will be crucial to get to grips with the changes quickly.

This article was created by --Najma_Dunnett.