The Construction (Design and Management) Regulations 2007 (“CDMR”) govern the safety of those working on construction sites by apportioning roles of responsibility to individuals involved in the construction process as well as to client organisations.
In 2010 the Health and Safety Executive undertook a large scale evaluation of the CDMR, set against the backdrop of numerous reforms and initiatives by the current Government to make health and safety regulations more accessible, in particular, to individuals and small businesses.
The evaluation, completed in 2011, found that the shortcomings of the current regime “disproportionately affected small businesses” and on 31 March 2014 the HSE published “Consultation on Replacement of the Construction (Design and Management) Regulations 2007” proposing a major revision of the CDMR.
This article summarises the Consultation’s proposed revisions and evaluates the impact on key duty holders in the construction industry.
1. Making the Regulations easier to understand
The CDMR apply to all construction work from major infrastructure and civil engineering projects to small scale domestic work such as roofing or replacing guttering. It is therefore vital the CDMR are easy to navigate and understand by not only sophisticated clients but also small businesses and domestic clients as well.
The HSE findings are that the CDMR in force are poorly understood and there exist persistent misunderstandings, particularly from small businesses, resulting in reduced compliance and “unnecessary bureaucracy”. The Consultation believes simplification is to be achieved by closer alignment to the EU’s Temporary or Mobile Construction Sites (TMCS) Directive which sets the minimum compliance standards for pre-construction phase sites.
Specifically, the Consultation aims to achieve simplification by:
- A more concise expression of duties
- A linear format corresponding to the timeline of involvement of duty holders
- Less cross-referencing to other parts of the Regulations
- Simplification of language used in the Regulations.
It is expected that this will lead to increased compliance and therefore improvements in health and safety outcomes. This is particularly important as small scale construction become responsible for an increasing proportion of serious and fatal accidents.
2. Replace the Approved Code of Practice (ACoP) with targeted guidance
The CDMR ACoP is one of the longest and most detailed of any health and safety regulation. The HSE evaluation found the ACoP is too long and often over interpreted or misunderstood. In particular it was found to have little impact on the SME sector to whom it is said to be inaccessible and irrelevant.
The proposed revision would replace the ACoP with guidance and material aimed at small businesses. The HSE propose to work with construction industry in developing targeted guidance initiated by specialists in the relevant sub-sectors.
3. Replace CDM Co-Ordinator with Principal Designer role
The CDMR prescribe the appointment of a CDM Co-ordinator to provide the client with key project advice in respect of management of construction health and safety risks. The focus of the CDM Co-ordinator is in the ‘pre-construction phase’ ensuring proper management, procurement of competent contractors and advising on key legal duties in relation to health and safety. Administratively the CDM Co-ordinator is responsible for notifying the HSE of relevant projects and collating the project’s health and safety file. This is clearly a pivotal role in the pre-construction phase in any project however the Consultation brief states that in many cases this role adds significant costs but little value. This is often because the CDM co-ordinator is appointed too late to have a significant impact or is not properly integrated into the project.
The Consultation aims to replace this role with one called ‘Principal Designer’. Construction clients will be required to appoint a ‘Principal Designer’ if one or more contractors is appointed on a project, or reasonably expected there would be more than one at some time. In most cases the Consultation expects this role to be taken by those formulating design such as the Lead Designer rather than an external appointment that is made to meet legal requirements. It is intended that co-ordination of information will become a core business function of the project team rather than an externalised role.
This role should, the Consultation states, lead to greater understanding and compliance throughout the team involved in the project and generate significant savings by simplifying co-ordination and information exchange. The Consultation believes such a change would generate savings of around £30 million per year for projects over £200k.
4. Replace explicit competency requirements with generic guidance
The Consultation identifies the excessively bureaucratic response in complying with CDMR as a major shortfall inherent in the current regime. There is particular concern expressed with regard to how the construction industry assesses levels of competency against ultimate benefit to the project in hand. It was found that the current CDMR encourages costly and bureaucratic systems to be implemented that divert attention away from substantive health and safety outcomes to box-ticking exercises by duty holders.
The proposed revision will remove Regulation 4 of CDMR, relating to competence, and the Approved Code of Practice but retain a general requirement of those appointing others to carry out construction work to have received appropriate information, instruction, training and supervision to work safely aligning closely with the general requirements of Sections 2 and 3 of the Health and Safety at Work Act etc 1974.
HSE believes that, moving forward, the competency regime should be the responsibility of relevant professional bodies and institutions within the construction industry with the aim of encouraging efficient and tailored approaches to assessing competency.
The HSE aims to implement the revised proposals by April 2015 and many of the main revisions will be music to the ears of small business owners and property developers involved in complex construction projects alike.
The removal of the CDM Co-ordinator role will ultimately save construction clients’ money by avoiding duplication of work already inherent in many design roles at the pre-construction phase.
Further, the removal of specific competency requirements will allow for an industry led revision of how training and competency may be evidenced in a substantive rather than an administrative way saving money and improving efficiency.
Overall the revised proposals offer anyone commissioning construction works greater flexibility in complying with health and safety legislation allowing for a tailored, rather than a prescribed, approach to their own projects.
If you have any questions or would like more information please contact Paul Matthews, Partner, Health & Safety.
Written by David McCracken, Trainee Solicitor.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.