25 September 2015

CDM Regulations 2015: A health and safety headache?

Nearly six months after the Construction (Design and Management) Regulations 2015 came into force on 6 April 2015, the implementation of the 2015 Regulations is still causing many construction professionals a headache.  With the six month "transitional period" afforded by the 2015 Regulations due to end at midnight on 5 October 2015, we examine the steps commercial clients need to take to ensure compliance with the 2015 Regulations and share our experience of the 2015 Regulations so far.  

Ongoing projects: what do clients need to do by 5 October 2015?

Where an ongoing project is due to continue beyond 5 October 2015, clients:

  • must appoint a principal designer in writing by 5 October 2015 where there is more than one contractor (or it is reasonably foreseeable that there will be more than one contractor) engaged on the project; and
  • should determine the CDM co-ordinator's appointment.

The appointment of the existing principal contractor can continue albeit the principal contractor is (from 6 April 2015) required to comply with the 2015 Regulations.

What if a new project commences?

The 2015 Regulations apply and the client will be required to appoint a principal designer and a principal contractor where there is more than one contractor (or it is reasonably foreseeable that there will be more than one contractor) engaged on the project.   The appointments must be made in writing as soon as practicable and in any event before the construction phase of the project begins.

Why the headache?

Since the announcement that the 2015 Regulations were to come into force, there have been countless articles, seminars and blog posts speculating on the effect of the new Regulations and the retirement of the role of the CDM co-ordinator in favour of the role of principal designer.  In particular, there has been much discussion about who is qualified to act as principal designer and the duties the principal designer is appointed to undertake.

Who can act as principal designer?

On a typical construction project, a number of individuals might qualify to act as the principal designer, including:

  • the existing CDM co-ordinator (if any).
  • a member of the design team.
  • the quantity surveyor.
  • the main contractor. 

The principal designer must be a "designer", which HSE guidance confirms is a person who prepares or modifies a design or arranges or instructs someone else to do so.  Some CDM co-ordinators and quantity surveyors (and their insurers) have suggested that they do not meet this requirement and cannot therefore act as principal designer.  We would recommend that any client considering who to appoint as principal designer checks that the proposed appointee carries adequate professional indemnity insurance which covers the role of principal designer.

Clients must ensure that the proposed appointee has the skills, knowledge, experience and organisational capability necessary to fulfil the role of principal designer.

What is the scope of the principal designer's duties?

The 2015 Regulations represent a shift towards increased client responsibility for health and safety when compared with the 2007 Regulations and the role of principal designer is not a straightforward replacement for the role of CDM co-ordinator.  Enhanced duties are placed on the client by the 2015 Regulations and many clients are asking the principal designer to assist in the discharge of those enhanced duties on the client's behalf.  Others are appointing a "CDM adviser" to assist the client in the discharge of the enhanced duties and to monitor health and safety on site.

Whose headache is all of this?

Ultimately, the client is responsible for the discharge of all client duties under the 2015 Regulations including any client duties it has delegated to the principal designer or to a CDM adviser.  Health and safety should therefore be at the forefront of every client's mind from the outset of a construction project.

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