It is a year since the CDM 2015 replaced CDM 2007 - changing the law for the whole construction process on all projects. So how has it been going? Health and safety consultant Louise Hosking reports.
11 May 2016 | Louise Hosking
The Construction (Design & Management) Regulations 2015 (CDM) have meant significant change for anyone using contractors from 6 April 2015.
Not only because of changes in responsibilities for dutyholders, but also because - for the first time - smaller-scale works and domestic projects had to follow the process.
Anyone commissioning works, using contractors, designing, pricing, scoping or delivering projects has had to review their arrangements and act accordingly.
I became involved in building projects during the mid-1990s when CDM was new. I have always believed CDM principles are sound, and have made good use of all the associated guidance to support clients, designers and contractors alike to implement systems of work that comply with Section 3 of the Health & Safety at Work Act 1974. This says an employer has a duty to protect those not in his direct employment from the risks created by his undertaking.
In the run-up to 6th April last year, safety and health professionals waited eagerly for the guidance, attending seminars and reading the draft guidance, and listening to our peers' views. The actual guidance, L153, was not released until the day of the regulations - even the Health & Safety Executive (HSE) website had to play catch-up.
This meant a significant amount of work for our customers - who represent all five dutyholders categories (clients, principal designers, designers, principal contractors and contractors) - to assess how they were going to adjust their arrangements. And they have adapted - all are now managing building work just that little bit smarter.
But CDM15 has not been without its challenges. Initially, there was a transitional period for works where a CDM coordinator had already been appointed which gave these projects up to 6th October 2015 to transition over to the new regulations. This actually caused some confusion because some organisations believed they did not have to comply until 6th October 2015.
Scope of the regulations
I work mainly in the facilities and commercial management sectors, so by far the largest number of queries I have had to deal with regarded the scope of the regulations owing to the definition within them on what is considered to be construction - in particular, the inclusion of 'maintenance and repair' within the definition. Initially, I guided organisations to focus on their larger projects or those with significant risk, but pure interpretation led to much confusion.
The definition of construction work has not changed. Planned, routine maintenance or work where individual components are removed and replaced, or lubrication and inspection undertaken, is not CDM work. The definition refers to work on the structure and CDM15 is all about construction projects that have a start and finish, and involve the use of construction tools and construction equipment.
The HSE issued excellent guidance in the form of a Q&A to assist, but I agree it is not definitive and no one wants to be the legal test case.
I have been watching discussions on the topics closely because this remains an area I am often asked about. The guidance I offer is to risk-assess each project against the definition and consider the following:
1.Does the work involve construction techniques, tools and knowledge?
2.Does the work involve breaking into the structure?
3.Does the work fall within the scope of a project with a start and finish?
If the answer to all of the above questions is 'yes', the work is likely to be CDM work. The regulations were never designed to complicate routine, low-risk, short-duration works, so a decision should still be made on risk as well. For buildings that contain asbestos, fragile surfaces and unknown risks, a risk assessment would be likely to conclude that the CDM15 process should be followed.
I was asked recently if jet washing a waste storage area would fall within the scope of CDM15. This is routine cleaning work with known managed risks and would be considered planned preventative maintenance (PPM) works, although jet washing the external fascia of a building would be a different scenario.
HSE guidance suggests individual routine maintenance tasks completed as part of a regular PPM programme would not be considered a 'project', and therefore would not have to follow the CDM15 process. But if work is undertaken by the same contractor (which is unusual) outside of the normal scope of services, it may well be. Construction work by employed staff could also fall under the scope of the rules.
Application for term maintenance and PPM works
Even where the CDM15 process does not apply, section 3 of the Health & Safety at Work Act certainly does.
I advise our customers to review all their contractor management arrangements and apply the process for PPM works by contractor as follows:
1. Ensure those engaged have the correct skills, knowledge, experience and organisational capabilities to undertake the work
2. Prepare pre-construction information and provide access to previous Health & Safety files, so contractors are aware of hazards that are inherent to their place of work.
3. Ensure that responsibilities for management and supervision are clear, especially where subcontractors are engaged.
4. Prepare site rules and expectations for safe working - create a client pack that clearly outlines expected standards.
5. Ensure that resourcing and time is adequate for the work in hand.
6. Induct workers coming to site.
7. Review Risk Assessment and Method Statement (RAMs) together for routine works to be undertaken at an appropriate frequency based on risk.
8. Meet with term contractors on a regular basis, and ensure that health and safety is on the agenda of every meeting.
9. Make sure contractors have access to welfare facilities if this is reasonably practicable.
10. Keep existing health and safety files current.
Competency of contractors
Competency has always been a CDM cornerstone. The new rules replaced this with a requirement to consider skills, knowledge, experience (SKE) and organisational capability when engaging the services of others.
Client responsibilities for engaging those with the correct SKE are now more critical than ever, and the penalties for not complying are greater than ever before. At the heart of the regulations is ensuring that those who create the risk are responsible for managing it. Some designers and principal designers have become used to referring to a CDM coordinator to 'think safety' on behalf of the project. Now, there is an expectation they will make the right choices and decisions themselves as they design.
This could mean some designers will have to learn more about health and safety and CDM15 to meet client expected standards. I have worked with more designers in the last year than ever before. They really can eliminate risks at the design stage, not only for those who construct, but also for anyone using or maintaining the completed project. Once they are shown how their decisions can have an impact on others a host of clever design solutions to manage safety problems and consider the health of others come tumbling out. I have witnessed some real light bulb moments.
If contractors and designers cannot show they are working to meet the new standards, clients will choose those who can.
Goodbye, CDM coordinator, hello, CDM consultant
The regulations have removed the role of CDM coordinator, but I am shocked by how many client organisations are still trying to shoehorn this role into their projects.
The requirements are very clear - the CDM coordinator no longer exists. Individual duty-holders must step up and develop the necessary SKE to fulfil their defined responsibilities. They should all be able to make risk-based choices as part of what they do, and with each decision made.
CDM coordinators have a wealth of knowledge, but must now adapt their approach to train, guide and support dutyholders, not do the work for them. Under the Management of Health & Safety at Work Regulations 1999, organisations should have access to a competent person to guide them in the application of health and safety legal requirements. Dutyholders cannot subcontract their responsibilities.
The HSE has been clear on this topic. Support may only be required for a short time while the necessary skills are acquired by the design team, client or contractor. Cooperation, good project management, and effective coordination is key to ensuring that there is a clear overview of all the safety issues resulting from the work and how risks are being controlled.
Organisations requiring support are responsible for verifying that advisers or consultants have the SKE and organisational capability for the work. The Association of Project Safety (APS) has been working this past year to make sure its members are meeting expected standards in knowledge to give sound advice to others. Anyone looking for advice can request evidence that the person they are working with has passed the APS examination of CDM15 competency. General safety consultants should be listed on the Occupational Safety & Health Consultants Register (OSCHR).
All dutyholders can benefit from learning more about applying the principles of health and safety prevention and application of the hierarchy of risk control. This will achieve greater control for any project. On larger projects, there are likely to be members of the design team with particular specialisms who can contribute to managing the risk as a whole. Application of the requirements in this case is all about good coordination of knowledge to determine how individual risks or disciplines combine or interact.
If there is more than one contractor involved in the project, the client must appoint a principal contractor (PC) and principal designer (PD) in writing and will retain these duties until they do so. There is scope for the roles to change during the project, but this must be organised in a managed manner. The PC role has changed less than the others, but PD is new. Some project managers and architects have been reluctant to take on the PD role, and some added costs have definitely been disproportionate to what is actually expected. For smaller projects, much less is required.
Responsible clients are working with their regular contractors and designers to achieve the standards expected and this is exactly what the changes anticipated.
For clients to know they have to appoint a PC or PD, they must be aware of how many contractors are working on the project. This means clients have to ask the question, and contractors who do not directly engage their workers must inform them.
Do the filing
Some project teams remain unsure as to what should be included, and clients can help by clearly communicating how they would like the information provided. There has been a reluctance to provide 'as built' drawings, and files are still not being created during the work, which is definitely the best way to collate it.
Clients should ask for regular updates to determine whether the file is progressing as expected. Everyone should expect 'as built' drawings. Every design alters along the way, so this may mean tweaking drawings at the end of the project to align with what has actually been built. Generic electrical layout or drainage drawings will equally not be enough to satisfy the requirements, and drawings must show where new utilities have been installed.
Photographs taken during the project are a great way to show where services run and the location of aspects of the project that will be hidden in future. Once developed, health and safety files should be updated rather than created from scratch, if possible, and looked after. This is future pre-construction data, so it's important, and clients should be demanding high standards of information.
Commercial clients who have accepted the new processes and acted upon the regulations feel more in control. Roles and responsibilities have greater clarity, and the regulations are more prescriptive, meaning everyone has direct duties to fulfil - which they usually like.
Informed project teams are definitely stepping up and I believe standards have improved. The CITB has some great guidance on its website, and industry sectors are supporting their trades in a productive manner. Health issues are being pushed to the fore with brooms being replaced by vacuum cleaners, and designers challenged to eliminate risks as early as they can.
Louise Hosking is a chartered safety and health practitioner and director at Hosking Associates