Proposals to replace the Construction Design and Management Regulations 2007

About this consultation

This Consultation Document seeks views on HSE's proposal to replace the Construction (Design and Management) Regulations 2007 (CDM 2007) and withdraw the Approved Code of Practice. The proposed Regulations implement in Great Britain the requirements of Directive 92/57/EEC on the implementation of minimum safety and health requirements at temporary or mobile construction sites, apart from certain requirements which are implemented by the Work at Height Regulations 2005. HSE state that:

"The proposals support the strategic objectives of improved co-ordination, better value for money, improved efficiency and use of technological changes in Construction 2025, the Government's industrial strategy for construction."

The main proposed changes are to: make the Regulations easier to understand; replace the CDM co-ordinator role with the principal designer; replace the ACOP with targeted guidance; replace the detailed and prescriptive requirements for individual and corporate competence with a more generic requirement; align notification requirements with the Directive and apply the Regulations to domestic clients but in a proportionate way.

The proposals will be of interest to clients of construction work (including householders as clients), designers, principal contractors, contractors, sub-contractors including the self-employed, CDM co-ordinators, safety representatives and anyone else with an interest in construction projects.

Background

CDM 1994

CDM was first introduced in 1994 following publication of the 1992 European Directive 92/57/EEC on minimum safety and health standards for temporary or mobile construction sites. The CDM 1994 (‘CDM 1994’) Regulations were a significant change from what had gone before by outlining management arrangements for safety and health on construction projects, placing responsibilities on those who procure and design construction projects as well as those managing sites. The physical safeguards that applied to all construction sites remained, for the time being, in the raft of Factories Act era regulations dating back to the 1960s.

CDM 1994 was considered structurally complex, and many in the industry struggled with its systematic approach and concepts. Concerns developed that the Regulations were not delivering what was intended, but instead drove bureaucratic behaviours.

In 2000/01, 105 fatal injuries were recorded to GB construction workers – the highest for more than a decade. The then Government called the industry to account at a high-level summit, challenging the industry to improve its health and safety performance or face further regulation.

At the summit the industry made a number of commitments to improve health and safety performance through stronger leadership, worker engagement and taking ownership of the issues. The industry also set a series of tough industry targets.

Following the summit, HSE published a wide ranging Discussion Document 'Revitalising Health and Safety in Construction'2. The debate this prompted led to wide discussion in the industry about the fitness for purpose of CDM 1994. This started the process of a review of CDM 1994 followed by consultation on revised regulations in 2005 and 2006. Emerging concerns included:

  • inadequate client focus;
  • complexity of the Regulations and their structure;
  • the failure of the planning supervisor role; and
  • bureaucracy.

The review of CDM also provided an opportunity to consider developing a single set of regulations for construction to include both revised proposals for CDM and also the physical safeguard requirements of the then Construction (Health, Safety and Welfare) Regulations 1996.

In 2005, as part of the review, HSE commissioned an independent baseline study3. This provided an important snapshot of attitudes prevalent at the time and has provided a very useful comparison for the evaluation of CDM 2007.

CDM 2007

The proposed revised package was presented to the then Health and Safety Commission in 2006. The aims were to:

  • simplify the Regulations, to make them easier to apply to the diverse range of contractual arrangements;
  • improve co-ordination by creating a ‘client advisor’ role of the CDM coordinator
  • (CDM-c);
  • improve client focus;
  • increase the focus on competence assessment; and
  • bear down on bureaucracy.

HSE worked closely with industry stakeholders in preparing CDM 2007 through CONIAC and other forums. CDM 2007 came into force on 6 April 2007, supported by an extensive Approved Code of Practice (ACoP), which had originally been written as guidance.

At the time CDM 2007 was introduced the Regulations were debated in Parliament4 and a commitment was given by the then Government to carry out an early review. This was agreed to mean after three years instead of five.

Evaluation of CDM 2007

The evaluation of CDM 2007 was one of the largest post-implementation evaluations undertaken by HSE, reflecting the more than two million workers subject to its requirements. A pilot exercise was undertaken in 2009 to develop a question set and methodology, and the main evaluation started in 2010.

The evaluation consisted of three elements. Firstly, an external research project which consisted of a substantial questionnaire, structured interviews, focus groups and open meetings and workshops. Secondly, a formal working group under CONIAC was convened, and thirdly, HSE invited informal submissions from industry stakeholders. Feedback was also received from HSE inspectors.

The external research was published in April 20125 and along with the other elements of the evaluation the broad conclusions were that:

  • CDM 2007 was viewed more positively by duty holders than the 1994 version;
  • its broad structure was fit for purpose;
  • problems generally arose through miss- and over-interpretation of the Regulations;
  • significant concerns remained, however, in several areas:
  • the Regulations had not borne down on bureaucracy as hoped;
  • the Regulations had led to an industry approach to competence which was heavy-handed and in many cases burdensome, particularly on SMEs;
  • the co-ordination function in the pre-construction phase was not in many cases well-embedded.

During the evaluation process the Government announced the Löfstedt Review whose terms of reference were, among others, to:

  • be evidence based;
  • examine costs and benefits of health and safety regulations;
  • look for provisions which go beyond Directive requirements;
  • look for how legislation might have driven inappropriate litigation and compensation claims.

Additionally, in July 2011, health and safety came under the three week ‘spotlight’ of the Red Tape Challenge. This is a Cabinet Office led initiative seeking comments from the public on all Government regulations. A number of comments were made on the CDM Regulations.

20 The evidence from both the Löfstedt Review and the Red Tape Challenge were used to inform the development of the revised CDM Regulatory package.

UK Government policy on regulation

The Government has carried out a number of general reviews of regulation such as

‘Your Freedom’ and ‘The Red Tape Challenge’, and of the health and safety system in particular, including:

  • Lord Young’s review of the health and safety system, culminating in ‘Common Sense, Common Safety’;
  • ‘Good Health and safety, Good for everyone’; and
  • Professor Löfstedt’s review of health and safety regulations.

The Government has clearly stated policies on the introduction of new regulations. They are backed up by a number of stated principles9 at the heart of Government policy on regulation, including:

  • one-in-one-out policy on regulatory costs (now one-in-two-out);
  • a “copy-out” approach to transposing European Directives into domestic law and
  • the establishment and use of Government mechanisms to ensure that these principles are maintained – the Regulatory Policy Committee (RPC) and
  • Reducing Regulation Committee (RRC) – to provide scrutiny of proposed regulatory measures.

In addition, in developing the revised regulatory package, HSE has taken into account the Government’s wider strategy on construction, including the Government's industrial strategy for construction (published July 2013), Construction 2025. The proposed revision will principally support the strategic objectives of improved co-ordination, better value for money, improved efficiency and procurement and use of technological changes, for example, building information modelling (BIM).

Europe

During the process of developing a revised regulatory package, HSE has considered the implementation of the Temporary or Mobile Construction Sites Directive (TMCSD) and the Government’s policy on implementation of EU Directives. The following two issues in

CDM 2007 have been identified as requiring re-alignment with the Directive:

  • the client definition – the CDM 2007 definition includes ‘by way of trade or furtherance of a business’ thus excluding ‘domestic clients’; and
  • the threshold of appointments (currently contained in Part 3 of CDM 2007) -
  • the requirement to appoint the CDM-c is currently set at the same threshold as for project notification. TMCSD requires it whenever there is more than one contractor.

The UK remains committed to fully implementing EU Directives and the proposed changes to the Regulations will meet that aim.

Small sites

The balance of where serious and fatal injuries occur has shifted dramatically in the past 10-15 years. Two thirds or more of fatalities now occur on small sites – sites where fewer than 15 people work – which is the reverse of the historical picture.

The larger, more structured part of the industry has made significant progress in improving its management of health and safety risks over this timeframe. Its motivation for achieving higher standards is often one of continuous improvement and innovation leading to best practice, rather than just meeting regulatory requirements.

A more pronounced two-tier industry has arguably emerged and the challenge is to provide an effective regulatory framework which is more applicable to smaller construction sites, and to appear more relevant to their needs. To deliver this, a radical rethink is needed on the length, complexity and accessibility of the package and the value that the current ACoP provides to those who run such sites.

Implications for developing CDM

Given the various background considerations, the desire to improve standards in the SME sector and reduce bureaucracy across the industry a more comprehensive revision of CDM is proposed.

Proposed changes

The draft Regulations therefore propose significant changes in the following areas.

  • significant structural simplification of the Regulations
  • the replacement of the ACoP with targeted guidance
  • replacement of the CDM-c role with a new role, that of the ‘principal designer’
  • removal of explicit competence requirements and replacing with a specific requirement for appropriate skills
  • addressing areas of TMCSD relating to domestic clients; and
  • the threshold for appointment of co-ordinators.

IOSH welcomes member comments and answers to the consultation questions below to help inform the IOSH response. Please send them to consultation@iosh.co.uk by 16th May 2014. 

This consultation therefore seeks views on the following areas:

  • structure of the draft Regulations – The proposals adopt a more straightforward structure that follows the progression of a construction project
  • clients’ duties including domestic clients – The proposals remove the exemption for domestic clients from client responsibilities. Domestic clients procuring work can assume the appointments to the co-ordination roles will happen automatically
  • co-ordination roles (principal designer and principal contractor) and appointment thresholds – The proposals remove the CDM co-ordinator role. Instead the client appoints (where there is more than one contractor) a principal designer at the pre-construction stage
  • contractors’ duties – Few changes from CDM 2007 but simplified
  • designers’ duties – The proposals retain explicit duties on designers since their role is crucial in considering and reducing risks during project design and beyond
  • competence – The concept of competence remains central to the rationale behind the proposed new Regulations, but a general requirement for information, instruction, training and supervision is proposed in place of a separate regulation on competence
  • notification – Amended to align with the threshold in the Directive
  • consideration of withdrawal of ACoP – Proposes that the ACoP be withdrawn and replaced by guidance aimed at particular sectors in particular smaller projects
  • impact assessment – The assumptions and conclusions made in the impact assessment.

Consultation questions

1. This Consultation Document sets out a new approach to CDM. HSE believes that this approach will be more easily understood by small or medium sized employers than the current one (set out in CDM 2007).

Do you

Agree?

Disagree?

Please provide comments, including evidence where available, if you wish.

2.  Please comment on any of the definitions in draft regulation 2 that you think are problematic.

3. The technical standards have remained effectively unchanged. These are contained in Part 4 of the proposed Regulations. Is this approach acceptable to you?

Yes

No

Please provide comments, including evidence where available, if you wish.

4. CDM 2015 continues to place general duties on designers. HSE has redrafted the duties to make them clearer. In your opinion, are the designer duties clearer?

Yes

No

Please provide comments, including evidence where available, if you wish.

5.  Do you think that these general duties on designers would be effective in considering relevant health and safety risks during subsequent construction work?

Yes

No

Please provide comments, including evidence where available, if you wish.

6.   Construction phase health and safety plans, proportionate to the risks involved, will be required for all projects. Currently, only projects lasting more than 30 days or 500 person-days need plans. Will there any impacts for projects that currently do not require a plan?

Yes

No

What will these be?

Replacing the ACoP with targeted guidance

7.  HSE proposes to withdraw the CDM 2007 ACoP and replace it with a

tailored suite of sector-specific guidance. Do you agree with this approach?

Yes

No

Please provide comments, including evidence where available, if you wish.

8. Please comment on whether there is any additional guidance that would be helpful.

Replacing the CDM co-ordinator with the principal designer

9. HSE believes that there is a need to bring the pre-construction coordination function into the project team that is in control of the pre-construction phase. This will be an effective way of achieving the aim of integrated risk management. Do you agree with this approach?

Yes

No

Please provide comments, including evidence where available, if you wish.

10. CDM 2015 requires the appointment of a Principal Designer (PD) and

Principal Contractor (PC) if a project involves more than one contractor. What would be the impacts for projects that do not currently require such appointments:

a) at the pre-construction phase?

Please provide comments, including evidence where available, if you wish.

b) at the construction phase?

Please provide comments, including evidence where available, if you wish.

Replacing the explicit requirement for individual competence with new regulation 8 and removing CDM’s explicit requirement for corporate competence

11. The draft Regulations do not explicitly require clients to check the competence of organisations, before they are appointed to carry out construction work. However, this requirement is implicit in the duty in regulation 5 for clients to ensure adequate management arrangements. HSE believes that this will be clear to those reading the Regulations. Do you:

Agree?

Disagree?

Please provide comments, including evidence where available, if you wish.

12. What should be required of clients to ensure the competence of those they appoint and/or engage in addition to ensuring project management arrangements are adequate and effective?

13.  The draft Regulations replace the specific requirements for individual worker competence in CDM 2007 with a more general requirement. Under CDM 2015 those arranging for or instructing workers to carry out construction work should ensure that they have received sufficient information, instruction and training, and have adequate supervision. HSE believes that this will have no adverse effects on health and safety. Do you:

Agree?

Disagree?

Please provide comments, including evidence where available, if you wish.

Notification

14.  CDM 2015 changes the notification threshold to cover projects lasting more than 30 working days and having more than 20 workers working simultaneously at any point in the projects; or exceeding 500 person-days. This will reduce the number of projects that need to be notified, but will require notification of domestic clients’ projects that exceed this threshold. What do you think will be the impact of this?

Clients including domestic clients

15. Clients’ duties in proposed regulations 5, 7 and 8 maintain a strong focus on the way that construction work is carried out on their behalf. Do you think this is the best approach for commercial clients’ projects?

Yes

No

Please provide comments, including evidence where available, if you wish.

16. HSE’s preferred approach in relation to domestic clients’ projects is set out in regulation 4. By default this deems that their duties will be fulfilled by the contractor (or principal contractor where there is more than one contractor). There is also the possibility that a domestic client can instead have a written agreement with a principal designer that the principal designer will fulfil those duties. HSE believes this would be a proportionate approach. Do you agree with this approach for domestic clients’ projects?

Yes

No

Please provide comments, including evidence where available, if you wish.

Impact assessment

17.  Do you agree with the analysis of the impacts (including costs and benefits) on commercial projects presented in the IA? Yes/No

Yes - Please provide comments if you wish.

No – What steps would you take to improve it? Please include numerical data to aid appraisal if relevant.

18.  Do you agree with the analysis of the impacts (including costs and benefits) on domestic projects presented in the IA? Yes/No

Yes - Please provide comments if you wish.

No – What steps would you take to improve it? Please include numerical data to aid appraisal if relevant.

19.  Are there any costs or benefits (positive or negative) that we have missed that you believe should be taken into account? Yes/No

Yes – Please provide details, including numerical data where possible.

No – Please provide comments if you wish.

20.  Do you have any other comments on the proposals covered by this questionnaire? Please provide comments if you wish.