CDM Regulations 2015 Update: re-spray or substantive change?

This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.

Summary and implications

Following the 10-week consultation in Spring 2014, the new CDM regulations (CDM 2015) came into force on 6 April 2015; the transition period to give clients the time to implement the changes will come to an end soon, on 6 October.

CDM 2015 ultimately aims to reduce bureaucracy, simplify the existing CDM Regulations (2007), and ensure that health and safety risk management is embedded in the design and construction of projects. Criminal sanctions will continue to apply to breaches of CDM 2015, and the Health and Safety Executive (HSE) are also mindful of the need to implement the EU Temporary or Mobile Construction Sites Directive (Directive 92/57/ECC).

With the transition period coming to an end, it may be asked: Does CDM 2015 really change the way in which health and safety risks will be managed, or do they just re-spray the existing regulations with a new paint job? What are the key changes under CDM 2015 and what do they mean in practice?

CDM co-ordinator/principal designer

CDM 2015 introduces the new role of the "principal designer", replacing the CDM co-ordinator role under CDM 2007. The consultation paper justifies the change for three reasons:

• it means the role is delivered through the pre-existing project team;
• the co-ordination of information and liaison between parties is a role already being carried out by a designer; and
• significant savings are expected to be generated (HSE estimates £30m per annum for the construction sector).

The idea is that the role will sit within the project team rather than as an external "add-on" to satisfy legal requirements. Confusingly, the HSE has said that the role will be "delivered through a pre-existing part of the project team, for example, the lead designer, the project management company acting on behalf of the client or the client themselves". Even so, the intention appears to be that the role should be performed by a "designer" from the outset of the project.

CDM 2015 makes the client accountable for the impact of their decisions on health and safety on the project. As well as the obligations to provide information, the client must appoint a principal designer as soon as practicable and must fulfil the role of principal designer until they do so. The principal designer must also ensure effective communication with the project team (including the principal contractor), ensure that designers comply with their duties and identify and explain complex risks.

The HSE sees this as an opportunity to incorporate health and safety issues into the wider design and management of a project, with principal designers able to influence design to ensure risks are correctly managed throughout the pre-construction phase. Whether or not this will generate the significant cost savings the HSE anticipates is doubtful, as the party undertaking the role is likely to increase their fee to cover the additional services.

Guidance

CDM 2015 confirms the HSE’s pre-consultation intention to do away with the Approved Code of Practice and replace it with tailored guidance written in plain English. On 9 January 2015, the HSE published the Draft Guidance on The Construction (Design and Management) Regulations 2015.

This is a good signposting document to allow duty holders (clients, domestic clients, designers, principal designers, principal contractors, contractors, and workers) to get up to speed with the new regulations before they come into force. The Approved Code of Practice was revoked on 6 April 2015.

Competency

CDM 2015 removes the bureaucratic Regulation 4 under CDM 2007 and provides that designers and contractors must have the "skills, knowledge and experience" to carry out their respective roles, whilst organisations must also have "organisational capability". It imposes an obligation on clients to "take reasonable steps" to ensure designers and contractors meet these requirements.

Transitional provisions

CDM 2015 now includes transitional provisions that will run from 6 April 2015 to 6 October 2015.

For projects starting before 6 April, where the construction phase has not yet started and the client has not yet appointed a CDM co-ordinator, the client must appoint a principal designer as soon as practicable. If the CDM co-ordinator has already been appointed, a principal designer must be appointed to replace the CDM co-ordinator by 6 October, unless the project is completed before then.

Throughout this "grace period" and until the principal designer is appointed, the appointed CDM co-ordinator should comply with the duties in Schedule 4 of CDM 2015 – which reflect the existing requirements under CDM 2007.

Practical implications

On a practical level, clients need to start considering the following:

• Can clients simply re-badge the CDM co-ordinator as a principal designer? Our initial view is that this would be very difficult to justify given the underlying intention of CDM 2015. CDM 2015 says that the principal designer must be a "designer", who prepares, designs or instructs a person under their control to do so. While reference to preparation of bills of quantities as design may assist some project managers most CDM co-ordinators would not satisfy this definition.
• CDM co-ordinator appointments being placed over the coming months need to allow for the flexibility to novate them to the appropriate design consultant or design and build contractor or to terminate if the client decides to appoint a different member of the team to perform to principal designer role. Where the same consultant is performing a number of services including CDM co-ordination, a separate CDM co-ordinator appointment will make novation of such services more straightforward.
• Are any updates needed to your design consultant’s appointments considering that one of them may be taking on the role of principal designer once CDM 2015 comes into force?
• Clients should bear in mind changes needed to design and build contracts since the contractor may be taking on the principal designer role. The Joint Contracts Tribunal have issued an amendment to reflect this, but any further amendments should be considered on a project by project basis.
• The principal designer role may, at least initially, be sub-consulted to a CDM co-ordinator, as a design consultant may not be fully equipped to discharge the new role (pre-construction health and safety co-ordination, the preparation of the pre-construction information pack, the health and safety file and other duties). It will be interesting to see how design consultants react to CDM 2015, whether they invest to enable them to provide the principal designer services or rely upon subcontracting to former CDM co-ordinators and also how their professional indemnity insurers react to this expanded role.
• With contracts procured on a design and build basis, if the principal designer is the design and build contractor or one of its design consultants, the client loses its directly appointed health and safety specialist coming at a project with a fresh pair of eyes.
• The level of residual duties on the client, despite appointment of the principal designer and principal contractor, is higher under CDM 2015 including ensuring clarity of responsibilities, adequacy of resources and effective communication within the team.
• The obligations relating to non notifiable projects (i.e. those below certain thresholds) have extended such that all the obligations in CDM 2015 other than the obligation to notify the HSE apply to all projects.

Final thoughts

With the end of the transition period looming, are you and the construction industry generally ready for the new regime? How many organisations have really thought about the practical and procurement changes needed to implement CDM 2015? Substantive changes are afoot – don’t get left behind.