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CDM REGULATIONS 2015: DESIGNING IN THE DARK?

HSE criticised over lack of designer guidance on risk avoidance

The Safety and Health Practitioner journal (SHP) has published an article by John Carpenter (Consultant) which argues there is a lack of clarity regarding the legal requirement placed on design organisations under CDM 2015. He states:

“without the control and sign-posting necessary for goal-setting legislation to work effectively the regulation is unworkable. The formal guidance fails to tackle this and recent advice from HSE adds further confusion.

There is no clarity, even after 20 years of CDM, for the construction designer. This has been significantly influenced by HSE’s historical stance of denying that a problem exists, but declining to discuss it in any meaningful manner.”

Carpenter believes that:

“The new HSE Legal Guidance (L153) does little to help the designer understand the process of eliminating risk or, where not reasonably practicable, to try to reduce it.

Indeed, two examples quoted, that of moving plant off the roof to ground level (para 86a) and reducing the size of paving flags (para 87a), point designers in a direction and then abandon them, providing no explanation as to how, within the context of real project pressures, the legal requirement is achieved with confidence. “

Suggested way forward

The article proposes that the way forward is to: (a) identify sectors e.g. domestic basements, new housing, refurbishment, known to be of legitimate concern to HSE and others; and (b) consult users (clients and others), principal designers and constructors order to determine any key concerns.

Guidance can then be written to illustrate the necessary actions that are to be taken by those involved in design. Two examples have been written and published on the ICE website. John Carpenter concludes that:

“It is a legitimate comment, after some 20 years, to argue that with authority comes responsibility: a responsibility to provide clarity for the ‘rule of law’. Industry has offered to assist and has started the process by producing the two guidance sheets cited above. These do not solve the underlying problem but are a pragmatic and directly applicable step forward. Industry needs to speak. HSE needs to act.”

Comment

Concerns over ‘uncertainty’ created by goal setting legal duties started with the Health and Safety at Work etc. Act 1974 and the qualification “so far as is reasonably practicable”. See our posts and comments on CDM Designer Duties.

The old adage…. “Be careful what you wish for” is relevant here.

The benefit of uncertainty is flexibility for the duty holder which allows design decisions to be based on the facts in each situation. By contrast, greater certainty and specification comes with less flexibility and removes the ability of designers to tailor decisions in each case. You pays your money….

In addition, uncertainty makes it more difficult for the regulator to prove that an offence has been committed. The regulator might question the substance of what is done to comply, however, the best ‘defence’ for design organisations is to establish a risk avoidance process which is practical, followed by staff and monitored.

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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