Management

Why are the 2015 CDM Regulations being ignored?

5 March 2018 | By Joanna Mantell

Almost three years on from the CDM 2015 regulations, the changes they heralded are yet to take root in the construction industry. Joanna Mantell explores their poor integration to date.

Joanna Mantell

The changes to the Construction, Design and Management (CDM) Regulations which came into effect in 2015 were generally seen as logical. Under the old legislation, there were problems with interpretation, levels of bureaucracy, and onerous competency assessments.

Significantly, there appeared to be a real lack of co-ordination in the pre-construction phase, put down to late appointment of coordinators, lack of resources and failure to fully embed coordinators into the design team.

In response, the CDM 2015 regulations were devised. These aimed to:

The CDM Regulations 2015 came into force on 6 April 2015. Under the new regulations, decision-makers in the construction industry have to be aware of the duties ascribed to each person involved in a project, and when a project becomes notifiable to the relevant authority.

Where a project is notifiable, notice must be given in writing to the HSE (or other relevant enforcing authority) as soon as possible and before construction begins, where the project is either scheduled to last longer than 30 days and involves 20 or more workers at any one time, or is scheduled to exceed 500 person-days.

A further change introduced in the new regulations was the removal of the role of CDM co-ordinator. A new role, that of principal designer, was defined as taking on the planning, monitoring and coordination of health and safety in the pre-construction phase and liaising with the principal contractor in the construction phase.

“Breach of the regulations is a criminal offence punishable with unlimited fines and, for individuals, imprisonment.”

It is the responsibility of the principal designer to help clients prepare the pre-construction information and ensure it is received promptly by the designers and principal contractor. Unfortunately, this key change, which came in with the CDM 2015 Regulations, has not become reality on construction projects.

The intention was that the principal designer role would be assumed by the architect or lead engineer. However, in practice, these professionals have proved reluctant to take on this role directly, often discharging their duties by hiring a CDM adviser. This is simply adding cost without achieving the aims of the new regulations.

Also, we are still seeing businesses having to obtain various accreditations to tender for work. Clients regard this as an easy route to compliance under CDM 2015 – a tick-box exercise for health and safety, where the relevant accreditations are regarded as a guarantee that the contractor is competent.

The failure to properly understand and integrate CDM regulations into the working practices of those operating in the construction industry is a considerable problem – not least because breach of the regulations is a criminal offence punishable with unlimited fines and, for individuals, imprisonment.

Increased penalties

The new sentencing guidelines introduced two years ago increase penalties imposed for health and safety breaches and, where there is an intentional or persistent failure to comply, they can be intended to bankrupt a company.

Clearly then, it is important to improve both understanding of, and adherence to, the CDM 2015 Regulations across the industry.

For current understanding and implementation to be improved, change must come from the top, with clients and principal designers looking at the intentions of the legislation rather than simply the strict letter of the law. Health and safety needs to be a serious consideration from the beginning of any project, and competence for each role must be properly considered and monitored.

Health and safety should be considered as an important part of the design stage, rather than as an afterthought. If a change in attitude towards CDM 2015 can be achieved on major projects, then it will break down resistance on the smaller projects that were a target of the changes.

Joanna Mantell is a lawyer at LHS Solicitors

Comments

Interesting analysis why the author says CDM 2015 is being ignored. Yes some responsibility rests with client, to better understand the requirements and PD to push for greater compliance.
But also the confusion on what actually constitutes a PD within a design team; HSE lack of enforcement & other industry disciplines not have the resource or lack Health & Safety knowledge, also needs acknowledging.
The idea of doing a 2 week training and you will be able to manage CDM matters, was a little condescending to existing CDM professionals.

Mustafa Hussain, 6 March 2018

I have to concur with the author’s findings. In my experience PDs are outsourcing the work to CDM advisers and not convincingly leading from the front end. This vicarious responsibilty has arisen because most architects taking on the role of PD simply do not have the time energy or expertise to carry out the functions of the old CDM adviser. And this in turn puts the client in a dilemma because it is their responsibility to ensure that not only is the PD appointed but also that they are competent to do it, (this is a law we are talking about).
Don't get me wrong I have seen and experienced some excellent PD work caried out by architects who have embraced (apologies for using that word) the "new" CDM Regulations. I get the feeling it is just not taken seriously enough at design stage because there are no spades in the ground. It only seems to get serious when sites start to form and that’s when the old CDM advisers do the groundwork that some architects either feel inadequate to do or it’s not a field they are used to. It begs the question why eliminate the old CDM adviser at all? Why not just keep the role and ensure that they are appointed from inception?

Shaun McHugh, 6 March 2018

I agree with Shaun getting rid of the role of the CDM was another crazy idea. When something works why break it?

sheila, 8 March 2018

More to the point why are the CDM 2015 Regulations allowed to be ignored

Sheila, 9 March 2018

Well done CM for at last publishing an article highlighting the industry's poor interpretation of the HSE's intent. And well done Joanna Mantell for writing it and for drawing duty holders' attention to the revised sentencing guidelines - and making the link.
Sadly it seems likely that corrrect interpretation/application of CDM2015 will not become more widespread until there are a few more prosecutions under the regs; and for this to happen more workers will need to be hurt, or at least put at signifant risk.

Andrew Hornby, 11 March 2018

Interesting article and highlights some good issues the industry is having to cope with. In my opinion the article hasn’t noticed the reason why the lead designers are appointing advisers. It is not an attempt to duck their responsibilities, instead they are asking CDM advisers to come in and help boost their Skills, Knowledge and Experience, which they assess as lacking the H&S knowledge to fulfil the role.
Many of the designers I work for are excellent architects or engineers but just because the HSE says they should do the role doesn’t mean they have the SKE to do it.
The current undergraduate degree courses, and their own historic qualifications, do not go into sufficient detail in H&S law to enable this and as stated in earlier comments, a two-day course does not suffice either.
I’d be really interested to see Joanna’s thoughts on this area.

John Wrightson, 13 March 2018

I have lived opposite a building site since October, and can confirm that a CPP is a fairy tale, or at best a wish list. I have sent letters to Health and Safety at Work and Unite but have been ignored or fobbed off. I have many photos if anyone is interested in health and safety!

Susan Mitchell, 18 June 2018

There is a lot more that should discussed to make certain points in this article valid in my opinion. I don't know the background of the author but can only assume she didn't work 'in practice' with the 2007 regs when the CDMCs were actually making a tangible difference.

The fact that the notification threshold and other provisions in the regs are only paying lipservice to the EU Directive is also not mentioned, and the fact that smaller projects are now far more bureaucratic isn't really addressed.

On the flip side, the comments about the SSIP accreditation schemes is valid. However, it fails to address the fact that the dorks who procure the services for Clients fail to appreciate that much of the evidence submitted for such schemes is fabricated for the competence assessment, and that far too many Clients select which of the procurement schemes they "only" use, rather than being fully aware of the SSIP deemed to satisfy scheme.

Frankly the only redeeming feature of CDM2015 is the earlier integration of design risk management. Everything else is a train wreck, and it's clear that ONLY a competent safety professional can assist in doing what the HSE wanted us to do with this politically-motivated piece of legislation, that received no REAL Parliamentary attention, read in Westminster on a Friday afternoon and rubber stamped on a Monday morning. Go figure?

Steven nagle, 13 September 2018

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