Muddied waters: CDM 2015 divides the industry

Long-anticipated and now much debated, the revisions to CDM 2007 regulations are set to come into force next year. And as Elaine Knutt discovers, many of its proposals, particularly the scrapping of the CDM Coordinator role, have divided the industry.

The industry is midway through a 10-week consultation on CDM 2015, the long-awaited third iteration of the design-to-construction health and safety management regulations. As construction gets to grips with its far-reaching proposals – including the demise of the CDM Coordinator role, the death of the Approved Code of Practice (ACoP), the extension of CDM responsibilities to domestic projects  and new duties for contractors and principal designers – two distinct schools of thought on the implications are emerging.

On the one hand, many in the industry broadly share the views and aspirations of the HSE, which has sought to prise away the “gold-plating” that adhered to CDM 2007 and allow the underlying health and safety philosophy to shine through. So there will be a reduction in bureaucracy and paperwork, clients will no longer be able to “appoint-and-forget” a CDMC, and health and safety culture will no longer be underwritten by a legally-binding ACoP, instead being based on the industry’s own tailored guidance.

“This is exactly what they said they’d do two years ago, it shouldn’t be a surprise and pushes everything in the right direction. As long as we get the follow through with the guidance that’s proposed, we should have an improved situation, more effective and with less bureaucracy,” says architect Peter Caplehorn, technical director of Scott Brownrigg and a member of the Construction Industry Advisory Committee (CONIAC), advisor to the HSE.

On the other hand, some are concerned that the HSE’s proposals create new and confusing responsibilities along the supply chain and could have unforeseen consequences. Chief among the worries are that the removal of the client’s duty to ensure health and safety “competence” as enshrined in the ACoP, and replacing it with a vaguer duty to ensure that contractors have “the necessary information, instruction and training” to carry out their roles safely, will in fact reinforce the industry’s reliance on bureaucratic “competence”-based accreditation schemes.

“Unless there’s some clarity on that pretty quick, it will give strength to the bureaucrats,” warns Richard Thorne MCIOB, previously in charge of CDM at Aecom in the south west and now an independent consultant. Paul Kimpton, managing director at the Building Safety Group, makes the same point. “How does that client make the right choice of contractor? Nowhere in the regs is there a steer. It’s so vague, it’s almost going to reinforce the bureaucracy that’s already in place.”

The revision to the regulations is driven mainly from the need to re-align the UK’s interpretation of CDM with the EU’s Temporary and Mobiles Construction Sites Directive (TMCSD). Because the UK version only applied to construction “in furtherance of a business”, it effectively excluded the loft conversions, kitchen extensions and major rebuilds carried out by home-owners. Correcting that situation removes the theoretical risk of the UK government being fined by Brussels.

But in another sense, the new proposals have departed from the TMCSD. After pruning back the role of CDMC, the HSE could have followed the Directive and its interpretation by other EU countries, such as Ireland, by splitting the CDMC role into a pre-construction coordinator and a construction coordinator. Instead, the HSE opted to give the principal designer the pre-site  safety coordination role, compiling  a file of pre-construction information to pass to the principal contractor.  

Naive thinking?

The general view is that architects have come a long way since 1994, with larger practices highly knowledgable about designing and building safely. But is the HSE being naive in thinking it can move a role from one duty holder to another?

“There is a logic and common sense to that when you have an experienced design company committed to H&S,” comments Richard Thorne. “At some companies I’ve worked with, that will work very well. For leaders in the industry with a huge depth of knowledge on H&S it will be business as usual. But one architect I’m working with, even though very capable, is unhappy about the situation. I expect the design community will be split down the middle – those that are capable and want to do it, and those that don’t want to do it, whether capable or not.”

At building consultancy Pellings, senior CDM Coordinator and head of health and safety Martin Cox is soon to have a new job title and acknowledges he could be biased, but highlights concern over designers’ experience. “That person may not have the necessary knowledge to review the design properly. I review jobs where I ask, ‘how do you clean the windows at high level? What about escape routes?’ Designers often just think about the initial design, not how people will build or use the building safely.” Cox adds that he foresees his role switching to advise designers, rather than clients.

Then there’s the thorny question of what actually happens in design and build projects where the principal designer becomes novated to the principal contractor. “There are commercial processes involved in a project, and it may well be that some of the health and safety issues are ignored for commercial reasons,” suggests Paul Kimpton. However, a path through this potentially tricky territory should be laid out in the forthcoming guidance.

Meanwhile, the demise of the ACoP is also linked to the 2012 Lofstedt Review of Health and Safety and the government’s Red Tape Challenge. Instead, from April 2015 there will be emphasis on the industry-written guidance documents, which are currently being drafted by six committees of industry volunteers coordinated by Kevin Fear, head of health and safety strategy at the CITB. The six groups are fleshing out the new duties of principal designers, designers, contractors, principal contractors, clients and workers.

Steve Coppin MCIOB, principal consultant in occupational health and safety specialist at Parsons Brinckerhoff and an observer on CONIAC, feels that this approach has inherent weaknesses. “Whatever you think of the ACoP, it’s clearly black and white, and now they’re moving away from that. The working groups are producing guidance documents that are 70% complete, but they don’t link in with each other, they’re done in silos, and by people that haven’t been given the script. All the documents take a different format and structure,” he says. According to Coppin, the guidance has been written from an SME perspective, but he points out that larger businesses could also flounder with the new rules. 

Billy Hare MCIOB, a lecturer in health and safety at Glasgow Caledonian University, agrees: “I think the HSE has underestimated the difficulties of the transition. I think there will have to be more guidance prepared for the industry than it anticipated to facilitate the change.” Hare, also a member of the working group drawing up the guidance for principal designers, adds: “We wrote the draft without sight of this document, so I think we will have to reassess it.”

CDM 2015 has the potential to impact on the industry’s “competency” accreditation industry, providing formal assessment of whether contractors, consultants and individuals meet the requirements laid out in Regulation 4 and ACoP Appendix 4. Peter Caplehorn is particularly optimistic that their removal will mark the end of over-the-top bureaucracy, especially as they apply to assessing consultants’ risk profiles.

“Prior to 2007, the HSE was trying to beef up the issue of ensuring we had a competent team, but now we’ve got an industry that has generated all these competence schemes. But as professionals, all of those who want to do a good job have the appropriate qualifications, and we have the right CPD and training, so there is no need for lots of other stuff on top, except an additional assessment on visiting sites. These schemes are draining the industry of money – and no one checks the competency of the people asking the questions!”

As far as contractor accreditation is concerned, the problem is the proliferation of accreditation schemes linked to clients’ pre-qualification procedures, such as CHAS (the Contractors Health and Safety Assessment Scheme), SafeContractor and Safe-T-Cert. In 2009, the Safety Schemes In Procurement (SSIP) forum was set up to create mutual recognition between 24 member schemes, so that a contractor with CHAS accreditation that is asked by a new client to demonstrate compliance with SafeContractor will not have to submit to repeated form-filling and costs.

Limited effect

But Building Safety Group’s Paul Kimpton says that SSIP has had only limited effect. “If you have one accreditation, it’s supposed to be straightforward to obtain another. In practice, that doesn’t happen – the second organisation is reluctant to accept the first’s accreditation, you’re only exempted from part of the process. If the current proposals achieve one good thing, it would be that.”

Of course, the underlying goal is not simply to rearrange responsibilities but to help reduce accident rates. The HSE estimates that nearly one million additional small projects a year will trigger the requirement to appoint a principal designer as safety coordinator, while in 2011-12, 70% of the 49 fatalities occurred on small sites with fewer than 15 workers. So what impact can we expect CDM 2015 to have on smaller sites?

“Small contractors – you’d be surprised at their lack of H&S awareness,” notes Richard Thorne, who is involved in the Working Well Together campaign to boost SMEs’ safety standards. “Without a doubt, there’s a higher proportion of accidents and injuries on small projects, so it must follow that there’s a lower level of capability – that’s the challenge. But when you think that the role of the principal designer and principal contractor comes into play with more than two contractors, that will leave a lot of small and less capable contractors working as PCs. These people will need a large amount of help. People will need time to adapt and organise to take on that role,” he adds. 

Martin Cox at Pellings agrees: “There’s a lot of wishful thinking here. For the big companies, health and safety is embedded, but the smaller contractors will struggle.”

The FFI factor

But as Thorne and Coppin point out, if there is a noticeable effect on safety and accident rates on smaller sites, it could  be driven by Fees for Intervention rather than by CDM 2015. The proposals mean that a section of the industry that has to date only been subject to the Health and Safety at Work Act will now be covered by both HSWA and CDM. So, when HSE inspectors visit small sites, they will also be able to impose FFI orders on “material breaches” of CDM, meaning that the prospect of FFI fines could raise H&S capability among small contractors.

The consultation is open until 6 June, and there’s every possibility that the details could change, although wholesale rethinks are unlikely. But come April 2015, will an industry that already has 20 years’ experience of applying the CDM Regulations take the new rules in its stride, or will the shifts throw up so many implementation complexities that they cancel out the benefits it was designed to deliver? Next year, we will find out.

Q&A: CDM Regulations 2015

What are the new proposed triggers for CDM 2015?
The duty to appoint a principal designer as safety coordinator applies on every project where there is more than one contractor. However, if there is just one contractor, the HSE says they will still be expected to compile a construction phase plan. The principal designer will have to: plan and manage the pre-construction stage, ensure that risks are eliminated or controlled through design, and pass on information to the principal contractor. Meanwhile, there is an entirely separate new F10 notification threshold for projects over a 30-day duration plus 20 workers on site simultaneously, or 500 worker days.

Will removing the connection between F10 notification and the onset of CDM duties raise issues?
The connection was introduced as a simplifying measure in CDM 2007, but some observers now feel that separating two processes that had been entwined, and introducing new thresholds, will create confusion. Parsons Brinckerhoff’s Steve Coppin also believes that the new arrangements expose clients to new areas of risk. “There will need to be a clear ‘gateway’ process so that clients know they can’t proceed until they’ve established whether there’s more than one contractor. Then they will need to add safety coordination to the principal designer’s contract, and make an appointment in writing. If they don’t, it’s not just a missed opportunity, it’s a breach.”

What effect will changing the notification threshold have?
The HSE predicts that the main effect will be that half the number of projects notified currently will end up on the HSE’s database, a fall from 115,000 a year to 55,000. That has raised concerns that the HSE is losing up-to-date intelligence on what’s on site. However, architect Peter Caplehorn rejects the idea that F10s make much practical difference. “In the ‘blitzes’ they pick on a geographical area, but as far as I’m aware, they target small projects with a risk of falls from height that probably wouldn’t have been notified anyway.”

What’s happened to the CDMC’s role as H&S “champion”?
This role appears to have disappeared. “We were expected to be the fount of all knowledge when it comes to health and safety, and would get asked to comment on various things,. If that’s going, I think it’s a backwards step,” says Pellings’ Martin Cox. And independent consultant Richard Thorne says: “The assumption that the CDMC would be the person round the project table with the deepest, broadest knowledge of H&S has gone. We need clarity on what level of competence and experience the PD will need.”

What exactly does “more than one contractor” mean – do they have to be on site simultaneously, or can it be consecutively?
In a statement to CM, the HSE clarified that the two contractors do not have to be on site at the same time, a definition that encompasses most domestic projects. Richard Thorne points out that a project to build a rear extension could involve a small builder/joiner, a plumber and an electrician. “That’s three contractors already,” he says. But Billy Hare says that “you can imagine a situation where clients or consultants might say, ‘we didn’t know there were going to be two contractors’.”

What do we know about the transitional arrangements?
Nothing so far. A spokesperson for the HSE told CM that the policy team had not finalised arrangements ahead of the consultation process, but that preliminary work had been completed. “We haven’t put TA out for something that hasn’t been accepted,” she said. When CDM 2007 became law, there was a six-month grace period before new and continuing projects had to comply with the new rules, but some fear that this will not be the case in 2015. Richard Thorne, currently preparing tender documents for projects going on site in spring/summer 2015, is already advising clients that they will be subject to the new rules.

What will principal contractors and principal designers on a domestic project have to do?
Where a project has both, Peter Caplehorn says they will agree between themselves who will write the construction phase H&S plan. If there is just two contractors, it will fall to the main contractor. Richard Thorne comments: “It will be proportionate to the project, it should be a few pages, quite simple. No doubt there will be people who will offer guidance, but it will be a step-change for the smaller contractor who finds himself in control.”.

What do the new regs have to say about D&B?
Richard Thorne says the previous ACoP did attempt to recognise offsite construction, MMC, design and build and PFI procurement paths, but this was always subject to interpretation. Now, it will be up to the guidance to clarify how the role of principal designer will change, if the project goes forward under a D&B contract, where the D&B contractor is likely to bring in their ideas and efficiencies. Another area of doubt is where responsibility will lie if it emerges that there are gaps in the information passed on to the contractor by the principal designer.  

CDM has been light on prosecutions so far. Is that likely to change?
HSE seems to have been reluctant to prosecute designers over CDM breaches with only one case so far, although CDM regs are used occasionally as a basis for prosecuting contractors. But some believe it could become more frequent, as the new wording in the CDM regulations – creating a duty to ensure contractors have “information, instruction, and training” – mirrors the Health and Safety at Work Act. Potentially, it has been argued, this could make it easier for HSE inspectors to build a case for a criminal prosecution.