CDM 2015 – Update for the public sector
The Construction (Design and Management) Regulations 2015 ("CDM 2015") came into force on 6 April 2015, replacing CDM 2007. CDM 2015 applies to nearly every construction, engineering or development project, including small and domestic projects. Formal guidance on CDM 2015 is published by The Health and Safety Executive ('HSE'), accessible here. The transitional arrangements came to an end on 6 October 2015, so now is a good time to take stock.
CDM 2015 places much more health and safety responsibility on "the Client" than was the case under the old CDM regime. The Client is defined as "organisations or individuals for whom a construction project is carried out." This broad definition means that public sector organisations will usually be the Client for the purposes of CDM 2015. If there is more than one client (such as in a PFI/PPP project) then they can agree in writing as to which will be treated the Client for the purposes of CDM 2015.
The Client's duties include the following:
- Notifying the HSE where construction work is scheduled to last longer than 30 working days and have more than 20 workers on site at any point and/or where construction work is scheduled to exceed 500 person days (notification used to be the responsibility of CDM Co-ordinators, not Clients);
- Making suitable arrangements for managing a project without risking the health and safety of any person affected by the project;
- Ensuring that other duty holders are appointed as appropriate, including the Principal Designer and Contractor (more on this below);
- Ensuring the roles, functions and responsibilities of the project team are clear;
- Ensuring that the sole contractor or Principal Contractor prepares a construction phase plan before construction works begin;
- Ensuring that the Principal Designer prepares a health and safety file;
- Ensuring sufficient time and resources are allocated;
- Ensuring relevant information is prepared and provided to other duty holders;
- Ensuring that the people and organisations they appoint have the necessary skills, knowledge, experience and (if an organisation) the organisational capability to manage health and safety risks;
- Ensuring effective mechanisms are in place for members of the project team to communicate and cooperate with each other and coordinate their activities; and
- Ensuring that the Principal Designer and the Principal Contractor carry out their duties.
CDM 2015 imposes lesser responsibilities upon "domestic" clients but public sector organisations will rarely, if ever, be a domestic client for these purposes. The Health and Safety Executive has confirmed this in its published guidance as follows:
"Local authorities, housing associations, charities, landlords and other businesses may own domestic properties, but they are not a domestic client for the purposes of CDM 2015."
Clients need a robust, practical understanding of their duties under CDM 2015. Some of these duties can be delegated to the Principal Designer under the contract between the Client and the Principal Designer but the Client will always retain responsibility for them so far as the HSE is concerned and will be the primary target of any resulting prosecution.
Public sector Clients need the resources to demonstrate proactive management of the CDM 2015 requirements before, during and after construction, including putting in place a system to ensure compliant arrangements are in place, maintained and reviewed throughout each project. As a result, those working in the public sector will may feel an increased sense of responsibility for delivering safely and responsibly to the wider community.
The Principal Designer and Principal Contractor
Where a project uses (or it is reasonably foreseeable that a project will use) more than one contractor, the Client's duties include appointing a Principal Designer and Principal Contractor. CDM 2015 includes a wide definition of contractor, which includes sub-contractors, so most projects require both to be appointed.
The old role of CDM Co-ordinator has been abolished. The new role of Principal Designer now has responsibility for co-ordinating the pre-construction phase. The Principal Contractor takes on responsibility for the construction phase. But note that the HSE guidance says:
"The principal designer's role continues into the construction phase when design work is carried out and when gathering and preparing information for the health and safety file."
Before appointment of a Principal Designer, the Client must ensure that the candidate person or consultancy has "the skills, knowledge and experience…necessary" to fulfil the Principal Designer role, in a manner that "secures the health and safety of any person affected by the project".
Project managers and cost consultancy practices who may previously have offered services as a CDM Co-ordinator often put themselves forward for the new role of Principal Designer. In theory this works: these professionals are likely to have many of the attributes required to "plan, manage and monitor" health and safety on projects. Indeed, the broad definition of "design" (Reg. 2(1)) encompasses material prepared by a project manager.
However, in practice, to manage the pre-construction phases effectively the Principal Designer should also have technical design understanding of the pre-construction work phases – a skill set parties previously offering CDM Co-ordinator or project management services may lack. Similarly, it would be inappropriate for a designer to take on the role of Principal Designer unless they are also able to perform all health and safety requirements now required by CDM 2015.
Similarly, it is essential that Clients ensure that the Principal Contractor has the required skills and expertise to perform this role. The client must also take "reasonable steps" to see that the appointed Principal Designer and Principal Contractor comply with their duties under CDM 2015.
Managing the Client's risk
The key to managing the Client's risk (although it can't be fully eliminated) is to:
- Delegate as much as possible to the Principal Designer and to ensure that this delegation is clearly expressed in the written contract between Client and Principal Designer. (A casual email exchange about fees and start dates will not suffice!)
- Maintain watertight systems in-house for managing construction projects and reviewing health and safety responsibilities.
We can help by providing training sessions on CDM 2015 and the wider H&S regulatory issues. Such sessions are adapted to meet your specific needs, giving your in-house team an opportunity to ask questions.
Our specialist procurement and construction teams have considerable experience in advising private or public sector bodies and can provide you with support and advice throughout the life cycle of your project.
For more information on issues mentioned in this briefing, please contact us.