January 24, 2015 |

Whilst the new regulations were hailed as being easy to read, in fact they involve a frustrating amount of cross reference to other sections and guidance.


There is an extensive use of the word ”˜must’ throughout the regulations, which means an absolute or strict requirement for a regulation to be complied with regardless of time, cost or effort. No more “reasonable”. This is far more binding than the current iteration. The duties are now more onerous and the liability to prosecution or Fees for Intervention (FFI) increased.

The other major point is that on the basis of a draft on 9th January followed by implementation on 6th April this year, there is precious little time for the unprepared or the as yet unaware to react in a manner which improves safety.


Some of the key changes:


1)  More focus on Client as head of supply chain to set standards throughout project. CDM 2015 makes the Client criminally accountable for the impact which their decisions and approach have on health, safety and welfare on the project. The Client must maintain and review site-specific construction Project Health, Safety and Welfare arrangements to ensure they remain relevant throughout the life of the project. This increased responsibility will be backed by increased fines for H&S breaches by the Client and others, including the option for a custodial sentence for serious breaches. The guidance states that the Client “could draw on the competent advice they are required to have under the Management of Health and Safety at Work Regulations 1999”.


2)  Principal Designer (PD) to be appointed with duties which include ensuring that all designers are fulfilling their duty to design out hazards and reduce risk  during construction, maintenance and end use.


3)  The statutory duty holder CDM Coordinator role is removed (no more Clients best friend?), with those responsibilities passed to the Client and Principal Designer on even more onerous terms. A prominent HSE spokesman has recently stated:-


“A lot of you might well say the main designers are up to doing this job. I think some are up to doing it […] I think there’s quite a lot that are not [possessing the (text from the Regs:  skills, knowledge, experience and[..] the appropriate organisational capability) to fulfil the PD duties]. But this is not going to change overnight. It’s going to take many, many years.”


With only a maximum of six months from 6th April to gain experience , skills and a control system, many main/ lead designers will find it difficult to find adequate resources to protect themselves against this risk, and don’t ask your broker about insurance…


4)  Principal Designer and Principal Contractor must be appointed for all projects upon which there is more than just one contractor (e.g. one trade) appointed, including those for domestic Clients. This is a massive leap in written appointments, but it might cause a few to pause for a moment and think what they are doing.


5)  A Construction Phase Plan is required for all projects even if there is only one contractor. The Client must ensure that this exists and is fit for purpose prior to any work on site. It has to be updated and the Client must determine milestones when he will check that it is effective. Best to keep records of this to avoid the risk of prosecution or FFI.


6)  Changes to notification thresholds.  Notification to the HSE will not be the trigger for appointing the Principal Designer and Principal Contractor.  Unlike the current CDM2007 Regulations, notification of a project to the HSE will only be necessary where sites employ more than 20 workers at any one time and the construction phase exceeds 30 working days, or involves more than 500 person days. This will result in far more projects attracting the full requirement of the CDM Regulations, but fewer F10s. This is a recipe for disaster for those who do not make themselves familiar with the regulations.


7)  Explicit competence requirements are replaced by requirements for skills, knowledge, experience and organisational capability.  For most projects the Principal Designer and Principal Contractor appointments will be for a company rather than an individual.


8)  There are transitional provisions within the new Regulations such that CDM-C appointments made for current Projects extending beyond 6 April 2015 can continue until 6 October 2015. Before the expiry of this period the Client will have the legal duty to appoint a competent and adequately resourced Principal Designer. Once again each Client will need to have confidence that his approximant is competent, and his thinking is no longer assisted by an ACOP, which is not due until 2016 and will not address competence. The industry better move fast to protect itself and its workers in this regard.


9)  The H&S File will be produced by the PC, with no direct duty on the Contractors to support him, so we can expect some delays in some cases in this respect whilst the wily battle the unwitting.


On behalf of our current Clients and various Project Team members, KOK are currently interrogating the detail of the changes and preparing briefings and guidance for all Clients, Designers and Contractors. What is clear is that KOK meet the definition of Designers within the terms of the Regulations and can, and will be undertaking the role of Principal Designers (and much more) to assist our Clients in continuing to discharge your duties and to ensure that any Project we are commissioned on remains compliant with the proposed new Regulations, is safe to construct, is safe in use and eventually safe to decommission.


Our local team of Independent Health and Safety Advisors will continue to provide services in the manner which we have been doing for many years which substantially  meets both the new Principal Designer and the new Client requirements, and amend our procedures to meet the new regulations.


We will provide advice and support services to assist Principal Designers in fulfilling their duties and also continue to provide our contractor support services.