Frequently asked questions on CDM 2015
It’s been exactly three years and three months to the day since the CDM Regulations 2015 came into force and since then, the UK has seen some considerable changes, including the change from a coalition to a Conservative majority and then more recently back to a partnership agreement with the D.U.P. As a country, we have seen net growth in population of just under 380,000 and economically we have grown, (but more slowly) in the last two years than previously and the construction industry represents just over 6% of the GDP.
With all eyes on Brexit, there is little appetite for any sweeping reforms of safety legislation and the indications are that safety will largely continue in the same vein. This is backed up by the flatlining of the statistics around accidents and illnesses in the few years since CDM 2015 came into force.
I hope you find the questions and answers below useful. We would love your feedback on how helpful this article was. For further information or to make comments please contact us.
What will be the effect of Brexit on the CDM 2015?
The CDM 2015 are UK legislation. When the U.K. leaves the EU, they will remain in force until they are amended.
Does the Principal Designer have to be a designer and the Principal Contractor need to be a contractor?
In short No! It is not necessary for them to be a designer or a contractor although, since there is a requirement for them to have the necessary skills knowledge and experience to undertake their duties, it follows that they should have some competence in this area. In the event that duty-holders are not appointed, then the responsibility falls back upon the client.
Is the Principal Designer automatically or legally responsible for vetting the design?
No. Although they can be appointed to carry out this function under a professional service agreement. The Principal role of the Principal Designer is one of co-ordination and management of that design information and to provide advice to the people who are ultimately responsible for it.
Who is responsible for notification?
The client is responsible for ensuring that notification is made where applicable, but can appoint a competent professional such as Greens Consultancy to submit the notification on their behalf.
A project is notifiable if: “the construction work on a construction site is scheduled to
- last longer than 30 working days and have more than 20 workers working simultaneously at any point in the project
- exceed 500 person days.”
Who is responsible under the CDM 2015 for temporary works?
Although not explicitly referred to in CDM 2015 the Contractor or any designer making a specification for temporary works would be responsible for due consideration as to their impact on health and safety.
CDM 2015 contains a new definition of “designer” as an organisation or individual who:
“(a) prepares or modifies a design; or (b) arranges for, or instructs, any person under their control to do so.” So it is worth noting that contractors may have designer duties as well as contractor duties.
For more information on Temporary works see BS 5975:2008. A Code of Practice for Temporary Works Procedures and the Permissible Stress Design of Falsework.
Do the CDM 2015 apply to maintenance work?
The general advice after referring to the definitions (see the definitions section in this article) is to apply CDM 2015 to maintenance work.
When does a project start and finish under the CDM 2015?
For projects with more than one contractor, the design phase will begin when design commences. The construction phase begins on the first day of construction work and will end once the project reaches practical completion, with allowance for finishing at the end of the defects liability period.
Can CDM duties and responsibilities be subcontracted?
Although overall responsibility for them remains with the duty-holder, these can be delegated. Where the client is a “domestic client”, some of their duties may be undertaken by the Principal Designer or Principal Contractor, see the summary of regulation 7 below.
Will the client, Principal Designer and Principal Contractor be liable to criminal prosecution as a result of any CDM failures?
The primary legislation behind the CDM 2015 is the Health and Safety at Work, etc Act 1974. Failure to comply with this legislation is an offence. Changes to the Enterprise and Regulatory Reform Act which came into effect in 2013 mean that the CDM 2015 no longer give rise to civil liability, so the main course of action will be through the criminal courts. Prosecution under this legislation can mean an unlimited fine and/or two years’ imprisonment.
It is common for companies to be prosecuted for breaches of health and safety, but this can be extended to directors and other employees where it can be shown that the breach has been caused by their negligence.
However, although the CDM 2015 have been extended to include “domestic” clients, the consensus appears to be that since these are not generally held to be experts in construction it is unlikely that a negligence claim would be brought against them unless there were exceptional circumstances. The CDM 2015 require Principal Contractors and Designers (as well as others involved in the project) to advise the client of their responsibilities regarding CDM so it is probable that there would be substantial mitigation offered in their defence.
Note: The requirement under the CDM 2015 is that duties should be proportional, so the regulations require that the duty should be exercised “so far as is reasonably practicable”.