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Institution of Civil Engineers (ICE) publish ‘sfarp’ guidance note
The ICE has published a note reviewing and commenting on ’so far as is reasonably practicable’ (SFARP) – the legal qualification to many health and safety duties - with specific regard to Designers in the construction industry.
The note highlights issues of concern to Designers in relation to application of SFARP.
What really matters and when is enough, enough?
The ICE note states that the requirement to exercise a legal duty SFARP is at the “heart of the construction industry design process” but is ”not well defined”.
The note quotes the Government response to a House of Lords’ report on the management of risk that called for ‘a set of guiding principles and focused messages aimed at empowering risk managers to concentrate on what really matters and to know when ‘enough is enough’.
Dealing with these issues is said to be “the rationale for this ICE report”.
ICE look to advice from HSE to provide the starting point in the absence of prescriptive Regulations or detailed case law. Where accepted ‘good practice’ exists it is felt Designers have some guidance to follow in the discharge of their obligations.
“Where neither prescription, relevant case law nor HSE guidance exists there is greater uncertainty and greater clarity must be welcomed.”
Uncertainty could lead to doing too much or nothing!
The note states that ”it is of great concern that Designers may become either unduly risk averse, or ignore risk management altogether, if they are uncertain as to the correct procedures or the sufficiency of their actions.”
The ICE aim is to generate discussion amongst construction industry organisations and HSE so that a pragmatic consensus may be reached as to a compliant route through the design process.
Comment
The ICE note is well intentioned but unlikely to result in greater certainty or clarity on SFARP. There is already extensive legal interpretation - see Redgraves – supplemented by published HSE practical guidance.
The good news is that designers will not go far wrong by: (a) following the CDM 2007 ACOP advice for designers and (b) applying the ERIC process presented in Construction Skills Guidance for Designers.
There will never be certainty as to whether designers have ‘done enough’ or all that is ‘reasonably practicable’. In addition, regulators will always have 20/20 hindsight when things go wrong.
Designers should focus on taking sensible postive action. Establish a process to avoid risk in preparing designs, stick to the process, review it and make modifcations when necessary.
Problems with SFARP are not new. When the HSW Act came into force in 1975 the common complaint was “we do not know what SFARP means”.
The Chief Inspector of Factories at the time replied that SFARP was intended to produce “creative uncertainty”! An uncomfortable but accurate description.
One final point, be careful what you wish for. The price of greater certainty for designers in health and safety requirements would be less flexibility and more restriction on creativity, imagination and innovation.