HSE enforcement opportunities enhanced by new regulations
The CDM Regulations 2015 have been in force for over 9 months and the new framework for construction project management has received a very mixed reception.
Our CDM 2015 Five Minute Survey revealed a polarisation of experience between those who view CDM 2015 as an improvement and those who believe the regulations are a change for the worse.
We found a widespread feeling that the Principal Designer role is not working well with a reluctance to accept PD appointments and confusion over what actions the PD is required to take.
Various discussion forums contain comments suggesting that the new regulations will fail through a lack of HSE enforcement with clients escaping accountability and Principal Designers having even less impact than the former CDM-C.
The overall negative response can be summed up as “no change” in behaviour.
More onerous legal duties for all
Those with responsibilities under CDM 2015 should be wary of any siren voices suggesting that nothing has changed or that the prospects of enforcement have reduced.
There have been subtle yet critical changes to the legal duties of key players which impose more onerous responsibilities. These are:
The key Client duty concerns arrangements for managing the project.
Under CDM 2007 the client was required to “take reasonable steps” to ensure that the arrangements were suitable. By contrast, CDM 2015 states that the client “must make” suitable arrangements for managing a project. In addition, the client now has legal responsibility for the Pre-Construction Information and notifying projects to HSE.
The CDM-C was required to ensure that “suitable arrangements” were made and implemented for the co-ordination of health and safety measures during the planning and preparation phase.
By contrast, under CDM 2015 the Principal Designer must “control” the pre-construction phase and “plan, manage and monitor” and coordinate matters relating to health and safety during that phase.
This is a mirror image of the active control and management duties already placed on the Principal Contractor.
The primary responsibility of Designers under CDM 2007 was to seek to avoid foreseeable risk during design. This duty could be performed so far as is reasonably practicable “taking due account of other relevant design considerations.”
Under CDM 2015 this qualification is removed from the regulations making the designer duty more absolute and onerous.
Under CDM 2007 the Principal Contractor was required to plan, manage and monitor the construction phase in a way in which the “construction phase” was carried out without risks to health or safety.
By contrast, CDM 2015 requires the PC to plan, manage and monitor the construction phase so that the “construction work” is carried out without risks to health or safety. This places the PC even closer to responsibility for front line precautions alongside their sub-contractors.
Implications for all
The apparently small changes set out above have significant longer term implications for all dutyholders under CDM 2015.
HSE resources and priorities are unlikely to result in many proactive enforcement initiatives over the coming months. This could be seen by some as grounds for complacency and under-implementation of the new regulations.
Such an approach would be unwise. When accidents and incidents occur HSE has made it clear they will follow all lines of enquiry up and down the chain from client to contractor.
In doing so HSE is now more likely to find, and be able to prove, breaches by all parties where the new duties have not been taken seriously. In this case any current lack of action by HSE may be the lull before an enforcement storm.
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.