APS Legal Advisor Discusses The Application Of CDM2015
In the latest edition of the APS Digest, we happened across a useful article by Gillian Birkby (APS Legal Advisor and Head of the Construction Group at solicitors Fladgate LLP) regarding the application of CDM2015 to maintenance works. The article raises some key points for Clients to consider:-
One important fact that has emerged over the last 12 months as we have applied our minds to implementing CDM2015 is that maintenance work falls within ambit. Since it has come as a surprise to many people that CDM2007 also applied to this type of work, the implications are still being worked out.
The issue applies particularly to longer term contracts for maintenance works, often comprising a number of different packages of work of repairs, maintenance and cyclical replacements. Queries may arise in scenarios where Clients are using their own direct labour for such works or employing external contractors.
The first point to bear in mind, in applying CDM2015 to maintenance works contracts, is the application of the definition of “construction work” to maintenance and repairs at paragraphs (a) and (e) of the definition. Planned and preventative maintenance on a structure falls within the definition of construction work under CDM2015, and a structure includes a pipe or cable and fixed plant, as well as a building.
Where maintenance and repair come within the definition, there may be repeat works (for example, clearing gutters) and a streamlined approach can be adopted by preparing a risk assessment/Construction Phase Plan (CPP) appropriate to that type of work, with questions to be answered in relation to the specific risks that may be present in each individual case. (In relation to the example of clearing gutters, these could include consideration of the weather conditions, working at height etc.)
In practice, there may already be a method statement for regular types of maintenance work, and this can be used as a CPP. A risk assessment/CPP need not be limited to simple works of relatively low value. It could also address anticipated items which may involve a significant programme of works of greater value ”“ for example, works on cyclical replacements of central heating boilers).
Under CDM2007, in many cases such work was not notifiable and therefore a Principal Contractor and CDMC were not required to be appointed. Under CDM2015, two different situations may arise:
1. Where there is more than one contractor working on the project at any time, the appointment of a Principal Contractor and a Principal Designer is required. A ”˜contractor’ means a legal entity such as a company, partnership or sole trader. If more than one of these entities is working on a project (for example, a main contractor and a specialist subcontractor), it will be necessary to appoint a PC and a PD, and a Health & Safety File will also need to be prepared.
2. Alternatively, if the work is being carried out by one or more individuals, all of whom work for the same organisation on a PAYE basis, there is only one contractor. Therefore, although the contractor will need to prepare a CPP, there is no need to appoint a PC and a PD or prepare a Health & Safety File.
It may prove to be good practice and still proportionate to prepare the risk assessment/CPP/basis of the Health & Safety File at the outset of a maintenance contract for the contracts duration or, at least, anticipating the work ahead in the coming year.
It may also be wise to consider the inclusion of a broad heading covering contingency arrangements for ”˜any other works to which CDM2015 applies’. The document could be refreshed at regular intervals (at least annually) or whenever a new stream of maintenance works covered by CDM2015 was indentified, revealing a gap.
At Keelagher Okey Klein, we have extensive experience of Measured Term Contract (MTC) and Framework Maintenance Schemes and are therefore ideally placed to assist Clients in setting up a CDM Management System to enable CDM2015 compliance in relation to maintenance works.
For further information please contact John Okey or one of our team on 01925 654158 or email email@example.com.