July 23, 2014 |

Here is a list of the headline changes together with our comments in red. Our response to the HSE consultation (ten weeks ending 6 June 2014) provided the HSE with evidence supporting our views; and we responded to the consultation as a company, as individuals, and via the APS . If you have any questions please call us on 01925 654158 and ask for a Construction Health and Safety Advisor or John Okey.

1. Role of CDM Coordinator omitted. Duties and responsibilities remain.


2. Those duties to be borne by Client, Principal Designer (PD) and Principal Contractor (PC). Duties of PD may be undertaken by a Designer, a Project Management Company acting on behalf of a Client or a Client. A PD need not be a “Designer”


3.   Client must make arrangements for managing a contract.


4. Client must ensure that the Principal Designer and Principal Contractor perform their duties. Client has ongoing duty to ensure the PD and PC discharge their legal duties with no caveat of “so far as is reasonably practicable” (SFAIRP).


5. ”˜Reasonable’ largely disappears. More legal duty/responsibilities fall on Client.


6. CDM applies to all projects which have more than one Contractor (trade) including “Domestic” projects. How will the HSE police domestic projects which are by their nature not notifiable?


7. Notice is given if more than 500 person days, or 30 working days and 20 plus workers on site at any one time. This is a direct “copy in” to the EU Directive (TMCSD), even though UK accident statistics indicate that most fatalities are on sites employing LESS than 15 workers. This misses the HSE’s objectives which include targeting small contractors. Notice does not prompt the appointment of a CDMC or any other help or advice.


8. No HSE Approved Code of Practice (ACOP) (e.g. no advice on competence or other examples). Duty holders will lose the defence of compliance with ACOP in any legal prosecution, therefore a greater burden on plaintiff to prove innocence.


9.ACOP replaced by specific guidance (not yet available). To be drafted by the Industry and scheduled for October 2014. Is this feasible given that we have not seen the final Regulations yet?


10. No transition period. Allows an “as soon as is practicable” for existing appointments. Clients may be reluctant to ditch CDM-C and replace with PD on existing Projects?  Clients need to plan ahead. HSE may review this as it is not contractually viable.

11. Applies to Domestic Clients. Again a “Copy in” to TMCSD. However the default position is that Client duties fall upon the Principal Contractor (White Van Man?). Who is going to tell them? Like tears in the rain.


12. Client must notify HSE. This is Reliant upon there being an “educated” Client. Notification requirement is “as soon as practicable before the construction phase begins”. This means the HSE have less knowledge of Projects during the design phase. Whatever happened to the idea of sorting buildability/safety issues BEFORE a Projects gets to site ( which was the point of the TMCSD)?  The  notice period does not facilitate HSE swoops on designers.


13. Client must pass Preconstruction Information to all designers and all his contractor appointments. Increased responsibility/duty to undertake. Reliant on an “educated” Client.  This is a massive change and potentially unworkable.


14. Health and Safety File is continuously developed from the start of the project and HSE want risk reduction embedded into design.  The File passes along to:-

a.       All Designers.

b.      Contractor appointments by Client.


15. Principal Designer must:  Plan, manage, monitor and co-ordinate.

16. Any person appointing  a Contractor (e.g. the client):  Must ensure “so far as is reasonably practicable” (SFAIRP) that the contractor has Information, instruction and training and has appropriate supervision. SFAIRP caveat does apply. No ACOP to call upon with regards to this competency and resourcing issue.

17. Statutory Provision. How do contractors stay up to date? They will need an Independent Health and Safety Advisor who will ensure they are in a position to provide contemporary Statutory Provision.

18. One aim is Embedded Health and Safety. Can’t argue with this aspiration. KOK by virtue of Framework appointments are more “embedded” in the design process than any individually appointed PD would be. Already doing the co-ordinated role across many Education and NHS Trust Frameworks.
19. HSE have said that they still expect an independent advisor with appropriate skills and experience, although that position is not named in the Regs, as long as Regulation 9 is complied with (Duties of the Principal Designer for health and safety at the preconstruction phase). KOK are well set up to undertake this role as we are already doing it for most Clients.

20. Project Supervisor named in the TMSCD is not specifically addressed in the draft Regs. Client “Health and Safety Advisor” in any other name?


Footnote: Reportedly ten major clients who were not consulted have met with the HSE to express their preference to retain a CDMC, and more are due to meet. Hence item 19, etc. I hope that the actual Regulations will improve greatly upon the draft or there is a strong possibility of compromising the massive improvements in Risk Reduction under the present, now familiar, Regulations.