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23rd May 2019
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CDM15 one year on
By Louise Hosking MCIEH CMIOSH IMaPS AIEMA SIIRSM, Chartered Safety & Health Practitioner and Director at Hosking Associates Ltd
The Construction (Design & Management) Regulations 2015 (CDM) meant significant change for anyone using contractors from 6th April 2015; not only due to a change in duty holders and their responsibilities, but because smaller scale works and domestic projects were required - for the first time - to follow the CDM process. Anyone commissioning works, using contractors, designing, pricing, scoping or delivering projects has had to review their arrangements and act.
I initially became involved in building projects during the mid-90s when CDM was brand new. I have always believed CDM principals are sound, and have always made good use of all the associated guidance to support clients, designers and contractors alike in order to implement systems of work which comply with Section 3 of the Health & Safety at Work Act 1974. This states 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 2015, safety and health professionals such as myself waited eagerly for the guidance; we attended seminars and read the draft guidance, listened to our peers, their views, and opinions.
The actual guidance, L153, was not released until the day of the regulations, and even the HSE website had to play catch up.
Personally, this meant a significant amount of work for our customers - who represent all five duty holders - to assess how they were going to adjust their arrangements. Overall, I have been very impressed with how they have adapted to the change and I think they are all managing building work just that little bit smarter.
We are now one year on, but CDM 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 until 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:
Working mainly in the facilities and commercial management sectors, by far the largest number of queries I have dealt with has been regarding the scope of the regulations due 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 CDM 15 is all about construction 'projects' which have a start and finish, and involve the use of construction tools and construction equipment.
The HSE issued some excellent guidance in the form of Q & A to assist, but I agree the guidance is not definitive and no-one wants to be the legal test case.
I have been watching opinions and discussions on the topics very closely because this remains an area I am regularly 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. My personal opinion is 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 which contain asbestos, fragile surfaces and unknown risks, a risk assessment would likely conclude the CDM15 process should be followed.
I was asked recently if jet washing a waste storage area would fall within the scope of CDM15 as the definition clearly mentions cleaning via this method. My opinion is this is routine cleaning work with known managed risks and would be considered PPM works. Jet washing the external fascia of a building would be a different scenario.
HSE guidance suggests individual term, routine maintenance tasks completed as part of a regular PPM programme would not be considered a 'project' and therefore this would not have to follow the CDM15 process. 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 can fall under the scope of the regulations, so don't forget this too.
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 am therefore advising 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 which are inherent to their place of work
3. Ensure responsibilities for management and supervision are clear, especially where sub-contractors are engaged.
4. Prepare site rules and expectations for safe working; create a client pack which clearly outlines expected standards
5. Ensure resourcing and time is adequate for the work in hand
6. Induct workers coming to site
7. Review 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 Health & Safety is on the agenda of every meeting
9. Ensure contractors have access to welfare facilities unless this is not reasonably practicable
10. Keep existing health & safety files current
Competency of contractors:
Competency has always been a CDM cornerstone. The new regulations 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 they ever have been, and the penalties for not complying are greater than ever before.
At the heart of the regulations is ensuring 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 may could mean some designers will have to learn more about Health & Safety and CDM15 to meet client expected standards. Personally, 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 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. There have been some real light bulb moments and I have enjoyed working alongside them.
If contractors and designers cannot show they are working to meet the new standards, clients will choose those who can, so this makes good business sense too.
Out with the CDM-Coordinator, in with the CDM-Consultant:
The regulations have removed the role of CDM coordinator, but I am shocked by how many client organisations are still trying to shoe horn this role into their projects.
The new requirements are very clear: the CDM-C 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 duty holders, 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 & Safety legal requirements. Duty holders cannot sub-contract their responsibilities.
HSE guidance has been clear on this topic. Support may only be required for a short period of time whilst the necessary skills are acquired by the design team, client or contractor. Cooperation, good project management, and effective coordination is key to ensuring 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 advisors or consultants have the SKE and organisational capability for the work.
The Association of Project Safety (APS) has been working hard over the last year to ensure its members are meeting expected standards in knowledge to give sound advice to others. Anyone looking for advice can request evidence the individual they are working alongside has passed the APS examination of CDM15 competency.
General safety consultants should be listed on the consultants register known as OSCHR.
I believe all duty holders can definitely benefit from learning more about applying the principals of Health & 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 will 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.
Appointing the Principal Contractor (PC) & Principal Designer (PD) in writing:
If there is more than one contractor involved in the project, the client must appoint a PC & 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. There has been a reluctance by some project managers and architects 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.
In order 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.
CDM15 also applies to domestic work where the homeowner will live in the completed project.
Where more than one contractor is required, the CDM15 process will apply. The contractor must create a construction phase plan before the work starts, and a health & safety file should be developed during the project to be presented at the end. Domestic clients cannot be expected to take on the same level of responsibility as a commercial client, so most of their duties are shifted to the principal contractor.
Designing out safety and health risks is at the heart of CDM which takes pre-planning, so CDM15 means a significant change when a PD is required for this sector.
The HSE did some research at the end of 2014 which asked homeowners about their considerations when choosing contractors. Health & safety was only a consideration for a few of the responders where there were children in the house. Cost remains the overriding factor. I believe there is a reluctance to change, where change is required, because the immediate costs associated with safer working are deemed to make compliant, responsible contractors much less competitive.
Until solicitors start asking for health & safety files when domestic property is brought and sold, I believe this sector will continue to lag behind - putting a generation of workers at risk of harm and long term ill health.
The Health & Safety File:
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 be requesting 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 throughout the project are a great way to show where services run and the location of aspects of the project which will be hidden in the future.
Once developed, Health & Safety files should be updated rather than created from scratch, if possible, and looked after. This is future pre-construction information, so it's important and clients should be demanding high standards of information.
I am finding commercial clients who have accepted the new processes and acted upon the new 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 like.
However, there are some trades who are carrying on as they did before, and homeowners are currently totally unaware of the regulations. I am constantly asked about who is promoting the changes in the domestic sector so homeowners know about the Health & Safety file, and I honestly cannot answer this question.
On the whole, informed project teams are definitely stepping up and I believe standards have improved. The CITB have some great guidance on their 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.
Contact Hosking Associates for advice, guidance and training on CDM15.
24th June 2016