New CDM Regulations published

CDM 2015 and its related guidance were published on Friday 9 January 2015 and, subject to Parliamentary approval and any changes between now and 6 April 2015, will come into effect on that date for new and existing projects. For projects already in progress on that date clients will have six months to put in place measures to comply with certain aspects of CDM 2015. There are some special provisions for domestic clients. Breaches of the new rules generally result in criminal liability for which the maximum penalty is an unlimited fine or two years imprisonment, or both.  In this briefing we outline the changes, the position for existing projects and what should be done in relation to existing projects.

1. What are the changes?

2. Existing Projects

3. Existing projects - what should you do?

1. What are the changes?

Broadly speaking the Regulations have been simplified so that they are easier to read and the role of the CDM co-ordinator is abolished, its duties being split between the principal designer (a new role, see below), the client and the principal contractor.  While there are some substantive changes, in general what needs to be done under CDM 2007 still has to be done, but in some cases by different people. 

Clients will have extra duties under the new rules:

• appoint the principal designer and principal contractor on any project where there is more than one contractor (at any tier), or if it is reasonable and foreseeable that more than one contractor will be working on a project at any time - in default, the client will fulfil these roles;
   
• make suitable arrangements for managing a project;
   
• take reasonable steps to ensure that the principal designer and principal contractor comply with their duties in the Regulations – the guidance suggests that this could be done through reports to the client either in progress meetings or by written updates;
   
• ensure that the principal designer prepares an appropriate health and safety file for the project (a health and safety file is only required where a project involves more than one contractor (at any tier)) – the guidance sets out the actions a client might take, such as providing a copy of the existing file to the principal designer and checking that it is regularly updated, reviewed and revised to take into account any work that has been carried out;
   
• provide pre-construction information (which now must also include information about health and safety hazards) to every designer and contractor (at any tier, with the assistance of the principal designer) appointed or who is being considered for appointment.

The principal designer is to plan, manage, monitor and co-ordinate health and safety during the pre-construction phase.  The pre-construction phase does not necessarily end on commencement of the construction phase as it includes any period during which design work is carried out.  It may therefore be more meaningful when reading the new rules to think of the pre-construction phase as the design phase.

The principal designer is the "designer" who is in control of the pre-construction phase, usually the lead consultant of the design team.  Existing lead designers will need to consider if they have the appropriate skills and experience to take on this role and if not, how these might be acquired (e.g. through the appointment of the existing CDM co-ordinator as a sub-consultant).

However, who should carry out this role on commencement of the construction phase?  The answer is not straight forward as it is likely to depend on the procurement strategy and who is responsible for design when the construction phase starts – for example, the answer may be different for design & build than it would be for construction management.  It seems likely that the current practice of appointing a CDM co-ordinator who is not the D&B contractor will be discontinued under the new rules (while CDM 2015 is silent on whether or not an organisation can be one or more dutyholder, the guidance states that this is possible and it may be more convenient for the D&B contractor to become the principal designer once appointed).

The principal designer prepares the health and safety file unless his appointment ends before the end of the construction phase, in which case the draft file is handed to the principal contractor to finalise.  The principal designer also takes on the CDM co-ordinator's duties (slightly modified) in relation to pre-construction information, co-operation between project participants and sharing information with the principal contractor.

The principal contractor is to plan, manage, monitor and co-ordinate health and safety during the construction phase.  The main change is that overall co-ordination now sits with the principal contractor rather than each duty holder having a responsibility to co-ordinate their health and safety activities with one another.   The principal contractor's duties are otherwise largely unchanged.

The client's duty to verify the competence of those it appoints has been streamlined significantly.  The new rules now provide that any person who is responsible for appointing a designer or contractor must ensure that they have the necessary skills, knowledge, experience and organisational capability to fulfil their role in a manner that secures the health and safety of any person affected by the project.  The guidance suggests how this might be satisfied, for example where the duty holder is a member of an established professional institution. 

Some small modifications have been made to what is a notifiable project.  However, all of the Regulations will apply regardless of whether the project is notifiable.

• The guidance replaces the Approved Code of Practice.  Failure to comply with the guidance will not automatically carry criminal liability.  However, the guidance may be material to the interpretation of CDM 2015.

2. Existing Projects

For projects already in progress as at 6 April 2015 duty holders can elect to implement the new rules on that date but if they do not they must do so by 6 October 2015. Transitional arrangements will apply during this interim period: 

- where there is an existing CDM co-ordinator, a principal designer must be appointed before 6 October 2015 unless the project is completed by that date; in the interim, the CDM co-ordinator must comply with certain duties (in general those under CDM 2007 regulation 5 and 20) and pass the health and safety file and any other relevant information to the principal designer on his appointment;
 

- where there is no existing CDM co-ordinator:

• if the construction phase has not started, a principal designer must be appointed as soon as practicable;
   
• if the construction phase has started, a principal designer may be appointed and if the client does not appoint a principal designer (there is no express time limit by when this is to be decided), the principal contractor is responsible for preparing the health and safety file.

3. Existing projects - what should you do?

HSE has issued CDM 2015 and its guidance as drafts which are subject to possible change between now and 6 April 2015.  However, assuming the final versions will be substantially similar to the current drafts and that many of the new provisions will apply from day one it would be prudent for all duty holders to prepare for their implementation:

• There is nothing in the new rules suggesting that clients who made an election under the current rules will be deemed to have made an election under CDM 2015.  Where there is more than one client and an election under CDM 2007 has been made it seems that a fresh election will be needed;
• Clients need to review those projects which were not notifiable under the previous rules and check the extent to which the new rules impose extra duties;
• Duty holders should familiarise themselves with the additional or changed duties, many of which will apply from 6 April 2015.  For example, clients will need to satisfy themselves that their designers and contractors meet the new competence criteria; 
• The CDM co-ordinator will need to prepare a draft health & safety file which complies with the new rules and hand over the draft file and other relevant information to the incoming principal designer;  clients should check if the services to be performed by the CDM co-ordinator need to be varied;
• Consider if there is a continuing role for CDM co-ordinators, for example to advise the client on how to comply with CDM 2015 which may entail an instruction to revise the existing scope of services;
• Existing principal contractors will be deemed to have been appointed as principal contractor under CDM 2015;
• It seems likely that the publishers of the standard forms will need to amend their contracts.  It may therefore be best to wait and see what they will do before embarking on varying the terms of existing contracts.

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