HSE response to CDM consultation
On 31 March 2014 the Health and Safety Executive (HSE) opened a public consultation exercise on its proposed changes to the Construction (Design and Management) Regulations 2007 (CDM). This followed an extensive informal consultation with different stakeholders from the construction sector. The formal consultation closed 10 weeks later.
Two key aims of the proposed changes were to make it easier for smaller organisations to understand and implement the CDM regulations and to bring the regulations more in line with the Temporary or Mobile Construction Sites Directive (TMCSD).
At the HSE Board meeting on 13th August 2014, it considered a paper summarising the response to the consultation exercise. In this article the main points arising out of the consultation exercise will be reviewed. The HSE has made clear that it is still intending to introduce the new amended CDM Regulations in April 2015.
Main direction fine: changes in the detail needed
There were 1427 responses to the consultation, which was “among the highest of any consultation undertaken by the HSE”. While there were some concerns about specific issues, the HSE concluded that representative industry bodies supported the proposals. However, some stakeholders expressed concern that the changes may not have a significant impact on smaller organisations.
The HSE set out a number of consultation themes and the responses to these are given below.
Simplification of the CDM Regulations
While most respondents agreed that the proposed amendments would make the regulations simpler to understand, there was concern over the following.
- The proposals include lowering the threshold for which appointment of the principal designer (pre-construction) and principal contractor (construction phase) is required. It was thought this could cause difficulties for the smaller contractors
- The HSE would retain duties on designers but some stakeholders are sceptical about how much influence designers can exert over the construction phase
- By aligning the proposals more closely to the TMCSD there will be a requirement for a written health and safety plan for all construction projects. Currently, written health and safety plans are required for notifiable projects.
Following the consultation exercise, the HSE has also accepted that there needs to be more flexibility in the transition arrangements so that the changes can be absorbed by the construction sector.
Retention of the Approved Code of Practice
The HSE proposed that the Approved Code of Practice (ACOP) associated with the CDM Regulations be removed and replaced with sector-specific guidance. After many stakeholders objected to the removal of the ACOP, the HSE has agreed to develop a “new, shorter signposting” ACOP, following the implementation of the new CDM Regulations.
The new ACOP would provide some key principles to implementing the new CDM Regulations, but would be supplemented by the HSE and joint HSE/industry guidance. Work on this would start in 2015. Hence, the HSE would be looking for a lead and significant co-operation with the construction sector to develop supporting guidance.
One of the main proposals was to abolish the role of the CDM co-ordinator and replace it with a principal designer. The HSE felt that in making this proposal the pre-construction phase would be best fulfilled by a designer rather than a CDM co-ordinator. This drew quite a bit of comment. There was a concern from some stakeholders that designers would not be too keen to take on the co-ordinator role.
Despite the concerns, the HSE felt that the proposed changes would improve co-ordination between the pre-construction and construction phase of a contract.
In the current ACOP there are specific requirements identifying the competence of workers and organisations by which clients should select relevant specialists and contractors. These are currently identified in Appendix 4 of the ACOP. However, a multitude of accrediting organisations has arisen, which has caused confusion about which is best suited for specific parts of the construction sector. This issue is exacerbated by the procurement requirements of many clients, particularly local authorities.
The HSE proposed to abolish Appendix 4 of the ACOP and replace it with a more general and less prescriptive legal framework for identifying competence.
The comments received during the consultation exercise raised concerns that the HSE proposals would not adequately address the problem and may undermine the standards that already exist. Hence, the HSE will review the draft regulations with regard to competence to improve the “clarity” of the wording. However, it remains convinced that the current competence requirements should be replaced.
Notification of construction projects
The proposals made by the HSE include a change to the notification requirements for construction projects. Currently, the requirement to notify the HSE of a construction project is if it is expected to last more than 30 days or will involve more than 500 person days of labour. The new proposal would require the HSE to be notified if the project lasted more than 30 working days and involved more than 20 workers simultaneously. This change would bring the CDM Regulations in line with the Directive. However, it was expected that this change would mean that fewer notifications would be made to the HSE.
A second effect would be to domestic clients. Projects involving domestic clients who met the new notification criteria would no longer be exempt, as is the current situation. However, the HSE indicated that for smaller projects, notification should not create a burden.
The HSE proposals include an approach to increase the focus of the CDM Regulations onto commercial client responsibilities. This approach is particularly supported by principal contractors and contractors. However, two main concerns arose. The responsibilities of clients involved in small projects may be onerous and as a result, they may seek advice from professionals, if the principal designer does not provide satisfactory information. The strengthening of clients’ responsibilities may provoke a back reaction, leading to more bureaucracy as a result. In other words, an increase in the client’s responsibilities may lead to a greater bureaucracy to “cover the client’s back”.
A key concern here is the removal of the exemption on domestic clients. The HSE recognises that a householder is unlikely to have the knowledge to fulfil the client’s responsibilities. As a result, the HSE has proposed that the “default” position is for the principal contractor or contractor to take on the client’s responsibilities. If the domestic client agrees, the designer could take on the responsibilities.
While the HSE recognises this is a difficult issue, in principle, it believes the change should be made. However, it will be revising the proposed legislative text to clarify the provisions applying to domestic clients.
The HSE has indicated that as a result of the consultation, it will amend the draft regulations in the areas identified above. Probably the most significant change from its planned approach is to keep an ACOP to the regulations, albeit a more streamlined version.
A key driver for the changes was to make the regulations easier to be understood and implemented in smaller construction projects. The HSE is relying on stakeholders in the construction industry to help develop sector-specific guidance. It appears that the HSE would like the regulations to provide a more general framework for implementing health and safety controls on all constructions sites – large or small.
In the latest “intensive inspection” of construction sites, the HSE found about 50% of those inspected were in breach of legal requirements. If the amended proposals are in place by April 2015, the construction sector will be facing a major challenge to improve health and safety standards on site.