Following on from the HSE’s CDM 2007 consultation, Olswang LLP have submitted an umbrella response to the proposed changes. Here, Senior Associate Alexandra Lavery outlines the concerns raised by their respondents…
The Health and Safety Executive (HSE) is required to regularly review the effectiveness of the Construction (Design and Management) Regulations 2007 (CDM Regulations). It launched a consultation on replacing the CDM Regulations and its associated Approved Code of Practice (ACoP). The aim is that revised regulations will come into force in April 2015, shortly before the next General Election. Mindful of the fact that the revised regulations envisage more significant changes to the current regime than many appear to realise, Olswang submitted an umbrella response to the consultation which incorporated feedback from our clients, including developers, contractors and designers.
The HSE states that its goals are to simplify the CDM Regulations, improve worker protection, improve health and safety on small sites; and discourage bureaucracy. The new regulations:
Have a simplified structure;
- Replace the ACoP with targeted guidance;
- Replace the CDM Co-ordinator with a “principal designer” (PD);
- Require a Principal Contractor (PC) and a PD to be appointed for all projects where there is more than one contractor;
- Remove the requirement for clients to appoint “competent” individuals, and replace that with a more general obligation on clients to ensure that individuals on site have sufficient information and supervision to work safely;
- Extend the regulations to homeowners.
Implications for you
Although the simplification of the CDM Regulations is greatly welcomed, both Olswang and the majority of our respondents had concerns regarding replacing the ACoP with “targeted guidance”. The ACoP is often criticised as too lengthy and inaccessible, however, our responses generally find that the ACoP contains useful guidance on interpretation and application, and on the whole find that it has helped reduce bureaucracy. The ACoP was produced by the HSE, which has a vested interest in ensuring that it is sufficiently comprehensive and practical. Although the HSE intends to produce the guidance working with industry, there were significant concerns that if it is overly simplified the benefits described could be lost.
The PD will have greater control and influence over design than the CDM Co-ordinator. It will be responsible for planning, managing and monitoring pre-construction, and those obligations will pass to the Principal Contractor upon the commencement of construction. The aim is to integrate the approach to risk management and the HSE cites feedback that the CDM Co-ordinator often operates on the fringes of the construction team. The new default position is that the PD will be appointed from the existing project team (rather than be a standalone consultant), which should help achieve this aim. This is a major change as, in our experience, it is common for project teams, particularly on more modest construction projects, to have a standalone CDMCoordinator. The HSE hopes that the introduction of the new default position will result in less standalone appointments.
Our respondents echoed our unease in bringing the role into the existing design team. In fact, they were much more positive about the CDM Co-ordinator’s role, and disagreed with the HSE’s assertion that the role is often ineffective. They questioned whether there is evidence to suggest that a designer will be best placed to fulfil the roles, and argued that the separate role has brought useful objectivity to projects. In fact, many CDM Co-ordinators are not designers. Will the changes lead to CDM professionals being more inclined to join design consultancies? There were some concerns that health and safety specialists could receive less attention with this approach. Our responses were also circumspect about the anticipated cost savings as many had concerns that a default appointment of the PD from the existing design team could lead to expectations that the role is performed within the agreed design fee.
The extension of the CDM Regulations to homeowners is also a significant change. Presently the CDM Regulations only apply where the person or company carrying out the development is doing so as part of a business. The domestic restriction will be removed – therefore all the obligations which fall to commercial clients would now also apply to homeowners. The HSE hopes that extending the CDM Regulations to homeowners will be proportionate as there is a default position where the domestic client’s duties fall to the contractor (or to the PC where there is more than one contractor). The requirement to take compliance action is therefore likely to be felt by contractors in the domestic sector rather than by the homeowners. The extension to homeowners will likely increase their construction costs but this should, of course, lead to safer worksites. For the new regulations to receive a smooth introduction for domestic construction works may, as I mention above, depend on the quality of the targeted guidance. There is some logic to this widening in Olswang’s view. We are aware that, anecdotally, in the years following the enactment of the CDM Regulations, larger construction sites have become proportionately safer and it is the smaller projects, where the limited number of HSE inspectors is most evident, where the higher proportion of accidents accrues.
Clients will also be required to appoint a PC and a PD where there is more than one contractor appointed on the project. This is a change to the current requirement that a PC and PD are appointed if the project is to last at least 30 working days, or the equivalent of 500 person days (i.e. 50 people each working at least 10 days). Presently, where two or more employers share a workplace they are obliged to co-operate so far as necessary to comply with the Management of Health and Safety at Work Regulations 1999. The HSE hopes that as employers are already subject to this co-operation requirement, the additional duties imposed on a PC and a PD will not seem like too much of an additional burden. The HSE is aiming for a proportionate approach to compliance on smaller projects and will provide guidance on this. Again, the transition will depend on the quality of the guidance, especially for contractors previously unaccustomed to the CDM Regulations. The approach seems likely to increase the inspection burden on the HSE.
The removal of the competence requirements in Regulation 4 (where the client is obliged to appoint “competent” individuals) aims to respond to past criticisms of perceived bureaucracy, and the HSE cites industry concerns about the balance between the benefits and costs of compliance. The HSE views the increase in third party schemes which offer an objective assessment of “competence” as costly and bureaucratic for contractors. The HSE proposes a more general set of requirements in the new regulations. Clients will broadly have to ensure that those they have appointed have received appropriate information, instruction, training and supervision to allow them to work safely.
The new requirements are of a general nature, with the intention being to work with industry through non-regulatory approaches to promote cultural change and leadership. The idea is a clean break from the competence requirements by completely removing Regulation 4. Overall, this change looks to benefit contractors and clients alike in cutting down on pre-qualification costs and bureaucracy in the supply chain. In Olswang’s opinion, this rethinking by the HSE is pragmatic. While experienced developers were mostly comfortable with Regulation 4, it often left newcomers more bewildered. However there are concerns about the burden this will place on clients. Many of our responses saw the quality of the guidance as crucial to the success of this proposal, and felt the transition would benefit from a handover period. ■
If you would like to receive a copy of Olswang’s response to the HSE’s consultation, please email constructionevents@olswang.com.
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Alexandra Lavery
Senior Associate
Olswang LLP
Tel: 020 7067 3000
london@olswang.com
