CDM 2007 Regulations

CDM 2007 – PRESSURE WHERE THE INFLUENCE LIES

The newly updated Construction (Design and Management) Regulations (2007) have clearly been developed following a ‘reality check’. Like so many Regulations, CDM 1994 was based upon a rather idealised view of the construction industry. Those who knew the industry well quickly saw that the main emphasis would still be on the Principal Contractor, even though the Enforcing Authorities (The Health and Safety Executive) had said that Principal Contractors had done most to improve safety in the industry and that the main need for improvement focussed upon the areas of procurement and design. In practice it is much easier for the HSE to check that Principal Contractors are complying with the law since they can walk down many city streets and onto a construction site. Checking that Clients have correctly procured a team for a project or that Designers have given due consideration to health and safety is far more difficult to target and far more time consuming (and expensive) to pursue. This will probably always be the case.

Commercial and Cultural Realities

The HSE have carried out pilot studies into CDM compliance of Designers and Clients by visiting key organisations and asking them to present examples of recent projects and how they have managed CDM. The results generally appalled them. Not only did they find widespread non-compliance but also a serious lack of knowledge. It seemed that many Clients and Designers felt they had no ‘need to know’.

What the new Regulations do is to take on board the commercial and cultural realities of the industry:

• Most Clients are involved in making money out of a project, or at least in the avoidance of overspending.
• Few Clients have ever been prosecuted for a breach of the CDM Regulations and personal prosecution of Clients is almost unheard of.
• The Client managers making decisions about the construction of a building are very often disconnected with the task of maintaining the building effectively (cost, convenience and safety).
• Designers and other Client appointed Consultants will do whatever is required to keep the Client happy. In reality this means completing a project ‘on budget’ and ‘on time’. If they make waves about safety provisions they may be seen as a liability. The only exceptions are reputable Principal Contractors who know they are vulnerable to close scrutiny from the HSE and value a reputation for having a clean safety record.
• Cultural norms within the world of design present a barrier to change. Whilst Engineers are trained to make safety assessments at every stage, Architects and specifiers of buildings and equipment (often Clients) have no such training and tend to see safety as something for others (the Principal Contractor) to sort out later. In reality the Client is likely to have far more success in ‘persuading’ them to change their attitude than the Enforcing Authorities. ‘Money talks’.
• ‘Educated’ Clients have relied upon their legal advisors to tie-up and off-load health and safety duties within contracts (e.g. via a Client’s Agent – which is no longer possible under CDM 2007).

Responsibility Where the Influence Lies

The overriding shift in emphasis in the new CDM Regulations is to place the most responsibility where the greatest influence lies. If it is the Client who determines;

• how much can be spent;
• how much time is available for preparation;
• when the building needs to be delivered;
• what purpose it must serve;
• who is given the contracts to carry out the work and how much / when they are paid;

then surely this is where the legal duties and the greatest scrutiny should be focussed.

This may seem tough on the poor old Client, but the truth is that if this is the only realistic way to reduce pain and suffering and often death (the Construction Industry and associated maintenance remains number one when it comes to workplace deaths) then it is hard to object.

The construction industry has the worst health and safety record of any major UK industry. It accounts for 7% of the working population, but 25% of all fatal injuries and 16% of major accidents. 38% of the major accidents arise from working at height; 39% of fatalities from working at height. (Remember working at height is now at any height and requires a risk assessment to determine suitable control measures). Most fatalities occur on small projects.

CDM 2007 Summary

• The Construction (Design & Management) Regulations 2007 came into force on the 6 th April 2007.
• CDM 2007 replaces two previous sets of regulations. CDM 1994 and the Construction (Health, Safety and Welfare) Regulations 1996.
• CDM 2007 integrates health and safety throughout all construction work which includes site set-up, on-going repairs, maintenance and improvements.
• CDM 2007 applies to most construction work, not just larger “notifiable” projects.
• The CDM Co-ordinator needs to have competence in the field of Health & Safety.
• Requirement for CDM Co-ordinator (CDM-C) to ensure that the Client fulfils their CDM duties.
• ‘Construction’ now means from the moment someone is on site to set-up until the last hole is filled in.

CDM 2007 - The Key Issues

• There is an enhanced and clarified duty on Clients (those who order and oversee works) to ensure the adequacy of a construction project’s health and safety control measures – whether the project is ‘notifiable’ or not.
• Clients must tell a Contractor they appoint how much time they have allowed, before work starts on site, for the Contractor to prepare for the work (mobilisation period). This applies to any construction project and is required information on the (new F10) notification of projects to the HSE.
• There is no change to the definition of a notifiable project (except demolition) – see below.
• Planning Supervisors – this position no longer exists. It is replaced by the CDM Co-ordinator.
• CDM Co-ordinator (or CDM-C) is a new empowered duty holder for notifiable projects. The CDM-C has a duty to help the Client to comply with their duties under CDM.
• The focus is on risk management. The level of documentation created should reflect the risks involved but should address practical issues. ‘Quality not quantity’.
• If you appoint a CDM Co-ordinator or other professional you must assess their competence. There is guidance in the new approved code of practice on assessing competence. They must have competence in Health & Safety Management.
• New duty on “designers” (architects, surveyors) to eliminate hazards and reduce risks as far as is reasonably practical. E.g. Access for window cleaning, access to roofs to eliminate falls.
• Designers need to address risks that may come about during use of a building rather than just maintaining or demolishing it.

Definitions used in CDM2007

“Construction work” includes alteration, conversion, renovation, repair, upkeep, redecoration or other maintenance.

CDM does not apply if a leaseholder places a contract for work on his/her own flat, so long as they are acting as a domestic client and not as part of a business (which would include a management company set up by a group of leaseholders).

“Designer” means anyone who determines how something will be built. This extends to those specifying equipment, finishes etc and those determining build or maintenance programmes.

General Duties of Clients on all Construction Projects

These duties are put on “Clients” whether the work is a large notifiable project or not.But bear in mind the philosophy of CDM set out in the Approved Code of Practice:

“The effort given to planning and managing health and safety should be in proportion to the risks and complexity associated with the project. When deciding what you need to do to comply with the Regulations, your focus should always be on action needed to reduce and manage risks. Any paperwork produced should help with communication and risk management” (CDM 2007 ACOP).

Under the 2007 CDM Regulations, Clients are made accountable for the impact their approach has on the health and safety of those working on or affected by the project. However, although Clients are expected to ensure that certain things are done, they do not have to do them themselves, but they remain responsible for those duties.

Summary of Client Duties for All Projects

Clients must make sure that:

• Designers, Contractors and other team members who they propose to engage are competent (or work under the supervision of a competent person), are adequately resourced and are appointed early enough for the work they have to do – guidance on assessing competence is given in chapter 6 of the ACOP;
• they appoint a competent CDM co-ordinator for notifiable projects. Who, in the case of Clients lacking construction expertise, they should rely upon for advice on meeting their duties under CDM;
• they allow sufficient time for each stage of the project, from concept onwards;
• they co-operate with others concerned in the project as is necessary to allow other duty holders to comply with their duties under the regulations;
• they co-ordinate their own work with others involved with the project in order to ensure the safety of those carrying out the construction work, and others who may be affected by it;
• there are reasonable management arrangements (see below for more details) in place throughout the project to ensure that the construction work can be carried out, so far as is reasonably practicable, safely and without risk to health (this does not necessarily mean managing the work themselves as few clients have the expertise and resources needed and it can lead to confusion);
• Contractors have made arrangements for suitable welfare facilities to be provided from the start and throughout the construction phase (the Client is expected to assist with arrangements where necessary in order to achieve this);
• any fixed workplaces (e.g. offices, shops, factories, schools) which are to be constructed will comply, in respect of their design and the materials used, with any requirements of the Workplace (Health Safety and Welfare) regulations 1992;
• relevant information (see below for more details) that is likely to be needed by Designers, Contractors or others for planning and managing their work is provided to them.

Reasonable Management Arrangements

The arrangements put in place should be proportionate to the needs of the particular job and the risks arising from it.

Client Duties for Non-notifiable projects

The Client will need to ensure that arrangements are in place such that:

• there is clarity as to the roles, functions and responsibilities of members of the project team;
• those with duties under the regulations have sufficient time and resources to comply with their duties.
• there is good communication, co-ordination and co-operation between members of the project team (e.g. between designers and contractors).
• Designers if used, are able to confirm that their designs (and any design changes) have taken account of the requirements of regulation 11 (Designers duties) and that the different design elements will work together in a way which does not create risks to the health and safety of those constructing, using or maintaining the structure;
• the Contractor is provided with the pre-construction information (see below);
• Contractors are able to confirm that health and safety standards on site will be controlled and monitored, and welfare facilities will be provided by the contractor from the start of the construction phase through to handover and completion.

Having made these initial checks before work begins, clients should make periodic checks through the life of the project to make sure the arrangements that have been made, are properly implemented and updated as the project progresses. For non-notifiable projects, only simple checks will usually be needed, for example:

• Checking that there is adequate protection for the client’s workers and/or members of the public;
• Checking to make sure that adequate welfare facilities have been provided by the Contractor.
• Checking that there is good co-operation and communication between Designers and Contractors, if required.
• Checking that the arrangements which the Contractor agreed to make to control key risks on site have been implemented.

Additional Client Duties for Notifiable Projects

The trigger points for notifiable projects remain largely unchanged in CDM 2007. The Client must notify the Health & Safety Executive if the construction work will last longer than 30 days or involve more that 500 person working days. However, it is no longer necessary to notify demolition works that do not fall under the 30 day / 500hr classification. Notification can be completed on-line using the new form F10 (rev). https://www.hse.gov.uk/forms/notification/index.htm

The key additional duties for notifiable projects are:

• The Client must appoint a CDM Co-ordinator and a Principal Contractor.
• The Client must make sure construction does not start until suitable welfare facilities and a suitable Construction Phase Health and Safety plan are in place.
• The Client must ensure that the CDM Co-ordinator prepares (or updates the existing) Health & Safety File, retain it and provide access to it in the future.

Providing Pre-Construction Information

Clients must provide Contractors and Designers, who bid for work, with project-specific health and safety information needed to identify hazards and risks that may be involved. The information should be available as part of tendering or procurement.

“It is not acceptable for Clients to make general reference to hazards that might exist – for example that there may be asbestos present in the building.” (ACOP CDM 2007).

The information can be included in other documents e.g. a specification or notes on drawings.

A full list of the types of information you need to consider is set out in Appx 2 of the ACOP. Here are some relevant points which apply to minor works with housing / accommodation blocks:

• Planned start and finish times.
• Minimum time to be allowed between appointment of contractor and instruction to commence. This is a mandatory requirement for all projects.
• Requirements relating to health and safety of Client’s residents and employees.
• Site hoarding requirements.
• Site transport arrangements or vehicle movement restrictions.
• Client permit to work systems.
• Fire precautions.
• Emergency procedures and means of escape.
• ‘No-go’ areas or other authorisation requirements for those involved in the project.
• Any areas the client has designated as confined spaces.
• Smoking and parking restrictions.
• Existing on- site hazards.
• Boundaries and access, including temporary access – eg narrow streets, lack of parking, turning or storage space.
• Any restrictions on deliveries, waste collection or storage.
• Adjacent land uses – e.g. schools, railway lines or busy roads.
• Existing storage or hazardous materials.
• Location of existing services particularly those that are concealed - water, electricity, gas, etc.
• Ground conditions, underground structures or water courses where this might affect the safe use of plant, e.g. cranes, or the safety of ground works.
• Any difficulties relating to plant and equipment in the premises, such as overhead gantries where height restricts access;
• Health and safety information contained in earlier design, construction or ‘as- built’ drawings, such as details of pre-stressed or post-tensioned structures.
• Health hazards, including:
• Asbestos, including results of surveys (particularly where demolition is involved).
• Existing storage of hazardous materials
• Contaminated land, including results of surveys;
• Existing structures containing hazardous materials;
• Health risk arising from Clients activities.

The Housing Maintenance Sector

With such a shift of legal responsibility onto the Client, organisations within the Housing Management and Maintenance Sector will need to thoroughly review their policies and procedures on the management of health and safety related to construction and maintenance. There are no ‘transitional arrangements’ with these Regulations and the HSE are bound to focus their resources upon key construction / maintenance related Clients.

What must be grasped by Housing Management Organisations is that there are great organisational, practical and commercial benefits to be gained from managing CDM activities more effectively. This involves taking a more pragmatic, realistic and business-focussed approach rather than simply concentrating on theoretical legal compliance. In the writer’s experience, the Enforcing Authorities can tell the difference and look more kindly upon Clients who do things for practical benefit rather than ‘on-paper’ compliance. Safety managed this way becomes a more intuitive part of an organisations culture, is cost effective and is therefore more likely to last.

Further information

The Construction (Design and Management) Regulations 2007 SI 2007/230

Managing Health and Safety in Construction. ACOP - HSE REF L244. Order on 01787 881165

General Information: www.hse.gov.uk/construction or HSE Infoline 0845 345 0055

Design Safety Advice: http://www.safetyindesign.org/