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CDM REGULATIONS 2015: FLEXIBILITY -V- CERTAINTY?

Clients and designers hesitate over new Principal Designer function

The CDM Regulations 2015 have been in force for almost 6 months and the transition period from CDM 2007 Regulations draws to a close. By 6th October 2015 all UK construction projects must comply fully with CDM 2015.

Whilst delivering CDM 2015 Training during the first half of 2015 we have encountered a degree of fear, skepticism and uncertainty on the part of clients and prospective Principal Designer (PD) appointees.

Below we share our views on this subject.

What has NOT changed in CDM 2015?

The changes for Principal Contractors (PC) and Contractors are minimal. CDM 2007 required both parties to plan, manage and monitor health and safety risks during the project construction phase. These project management duties have been retained under CDM 2015 although the number of projects which require the client to appoint a PC has increased dramatically.

Designers under CDM 2015 include a wide range of organisations e.g. architects, consulting engineers, surveyors, interior designers, temporary work engineers or anyone who specifies or alters a design including the client. The main duty of designers under CDM 2007 was to eliminate and reduce risks to constructors etc. when preparing their designs. This duty remains under CDM 2015.

CDM 2007 required project clients to put in place ‘arrangements’ for managing their project. This duty has been retained under CDM 20015 which requires that clients must make suitable arrangements for managing their project, including the allocation of sufficient time and other resources.

The client arrangements will be suitable if they ensure that the construction work can be carried out, so far as is reasonably practicable, without risks to the health or safety of any person affected by the project.

What HAS changed in CDM 2015

The client duties have changed in one very important respect.

The client must now appoint in writing a party that is willing and able to carry out the new function of project Principal Designer with control over the pre-construction phase (PCP) and responsibility to plan, manage, monitor and coordinate the PCP.

The PD is a new business function requiring actions beyond those required of the former CDM-C role.

The change is causing some uncertainty and confusion for clients and project team members being asked to accept appointment to this new position.

It is not difficult to understand their dilemma.

For many observers the CDM-C was regarded as a role undertaken by an individual positioned external to the project team.

The Association for Project Safety (APS) embraced the role and established ‘qualifications’ to become a CDM-C. In many cases, those carrying out the role focused primarily on the requirements for pre-construction information and the health and safety file rather than ensuring that design team members were avoiding risk during preparation of their designs.

Other project team members often characterised the CDM-C as, appointed too late, ‘marginal’ to safety through design, ‘bureaucratic’, with a ‘tick box’ approach providing little ‘added value’.

This caricature is grossly unfair to those CDM-C organisations who, when supported by the client, made a real difference at the project design stage. It was, nevertheless, the conventional wisdom and part of the HSE justification for abolishing the CDM-C role.

However, this less than complimentary caricature provided a non-intrusive comfort blanket for everyone involved. The client discharged their duty, designers and contractors where not required to take on the CDM-C role and the arrangement enabled business to carry on as usual without too many difficult questions restricting design team autonomy in the interest of the health and safety.

So, despite the undercurrent of discontent the CDM 2007 requirement to appoint a CDM-C provided a degree of reassuring certainty for all.

Flexibility breeds uncertainty

Introduction of the PD requires the client to consider who they might legitimately appoint, in writing, to discharge this new business function.

The duties of the PD are set out in the Regulations, HSE Legal Guidance and Industry Guidance. However, the regulations and guidance are drafted so as to provide maximum flexibility for the client as regards the appointment, which should reflect the nature and scope of the project.

In addition, all parties realise and are fearful that the PD appointment comes with new duties requiring control of the PCP and responsibilities to plan, manage, monitor and coordinate which did NOT exist under CDM 2007.

These requirements mirror the PC responsibilities under both CDM 2007 and CDM 2015. Contractors have taken the PC function in their stride and the appointment has never been ‘outsourced’ to the equivalent of a CDM-C. However, clients, designers and contractors are unfamiliar with the new PD duties and uncertain as to how they might be discharged in the face of open ended flexibility.

Questions being asked by clients include:

  • How do I assess the skills, knowledge, experience and capability required of the PD?
  • Can I appoint my former CDM-C organisation as PD?
  • What actions should I expect of the PD?
  • How should I check that the PD is carrying out their new duties?
  • What will happen if the PD fails to take sufficient action?

Prospective PD appointees are considering:

  • How much more demanding is the PD function?
  • Do I have the skills, knowledge, experience and capability to accept appointment as PD?
  • Can I be appointed by the client as PD without consultation and agreement?
  • What fee should I charge for delivery of the PD behaviours and actions required?
  • What if designers get it ‘wrong’ will the PD face prosecution for design failings?

It is therefore not surprising that many are now bemoaning abolition of the CDM-C and the certainty that role provided.

The Way forward

Project clients and PD appointees must be fully conversant with HSE and Industry Guidance which includes detail on the actions expected of organisations accepting appointment as the project PD.

Our summary of the official guidance combines in one document all clauses relating to the required PD Key Actions and Behaviours.

Consider the above and set out a costed schedule of services specifying how the function will be carried out. The client must ensure that the PD function is properly resourced. Clients should demonstrate compliance with this requirement by making sure that resourcing of the PD function is transparent in the written appointment.

The apparent uncertainty about the PD function is illusory. There is ample information available and HSE has now issued supplementary Briefings on a number aspects of the client PD appointment.

Clients and prospective PDs must have the self-confidence to embrace CDM 2015, set out their stall and deliver the PD function. In this way they will secure compliance and improve consideration of risk during the project pre-construction phase.

Project clients and others who fail to grasp the PD nettle are, under CDM 2015, more likely to attract legal sanctions (including Fees for Intervention) alongside principal contractors and contractors who usually face accountability for project health and safety alone.

CDM 2015 Information and Templates

See CDM 2015 Survey Results for the findings of our CDM 2015 Five Minute Online Survey.

We have published a great deal of further information and templates designed to support Clients, Designers, Principal Designers/Contractors and Contractors in meeting their duties under CDM Regulations 2015.

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