When does a regulator pay costs? The Court of Appeal has spoken
Our blog series began with a review of Dame Judith Hackitt’s report and our examination of whether an outright ban on combustible materials is required. In this blog we analyse the primary purpose of the Construction (Design and Management) Regulations (‘CDM Regulations’), how the CDM Regulations apply to key persons in a construction project and how the Report suggests the construction industry apply the regulations to higher risk residential buildings (HRRBs).
Statistics published by the Health and Safety Executive (HSE) show that around the time the Health and Safety at Work Act was introduced in 1974 there were 166 worker fatalities in the construction industry. In 1981 there were 116 worker fatalities (a rate of approximately 8 per 100,000 workers) and there were over 1,600 reported non-fatal injuries. As of 2016, the fatality rate dropped to approximately 1.5 per 100,000 workers with 30 worker deaths reported. The rate of non-fatal injuries in the industry has also reduced over the preceding decades.
In addition to the Health and Safety at Work Act 1974, wide-ranging legislation has been introduced to promote health and safety in the workplace. For example, the Personal Protective Equipment at Work Regulations 1992 implemented requirements for workers and site visors to wear safety headwear, eye protection, gloves, high-visibility apparel, safety boots and other protective equipment.
One of the key turning points in for health and safety in construction was the introduction of the CDM Regulations.
Initially introduced in 1994 as a result of a European Directive targeting a minimum benchmark for health and safety standards on construction sites, the CDM Regulations are now firmly embedded in the UK construction industry. The primary purpose of the CDM Regulations is to ensure matters of health and safety are given due attention during the design and construction phases of a project. The Regulations have evolved over time and were revised in 2015 to make them easier to understand and apply.
The CDM Regulations introduced the concept of duty holders, who are responsible for overseeing the health and safety aspects of a project throughout its design and construction phases. The duty holders are clients, designers, contractors, Principal Designers and Principal Contractors.
The Report praised the effectiveness of the CDM Regulations saying they “are a valuable example of where greater clarity around duty holder responsibility, over time, helped to drive a culture change in construction site safety with a parallel reduction in construction deaths and injuries”. As part of the recommendations to promote greater clarity around accountability and collaboration, the Report proposes that a similar structure of key roles and responsibilities be introduced with regards to the design and construction of HRRBs,with a view to support the transformation of longstanding cultural inadequacies within the industry to “help underpin a more modern, productive and safe building sector”.
The proposal is that where the project relates to the design and construction of a HRRB, the responsibilities of the key duty holders defined by the CDM Regulations will be widened to cover additional health and safety requirements. The Report focusses on those roles which are the most important in initiating and overseeing a construction project.
Under the CDM Regulations, where clients carry out construction work as part of their business, they are responsible for ensuring that they appoint other duty holders who are suitable for their roles. Client must allow sufficient time and allocate sufficient resources to the construction project. The client has overall responsibility and ownership of the project and should ensure that the correct information is provided to the other duty holders and that the Principal Designer and the Principal Contractor carry out their respective duties.
While the CDM Regulations still apply to clients who are individuals, carrying out works on their own domestic property, the responsibilities are often transferred to the Principal Contractor or singular contractor as the case may be.
If the construction work on site is expected to last more than 30 days and have more than 20 workers working at the same time at any point or will exceed 500 person days of construction work, the project is considered to be notifiable. The client is responsible for sending the notification to the HSE, except where the client is a domestic client whereby this usually becomes the responsibility of the contractor (or Principal Contractor) or the Principal Designer if there is a written agreement that they will conduct client duties. The matters to be notified to the HSE are set out in Schedule 1 of the CDM Regulations and can also be found here .
The Report proposes that the client be responsible for making suitable arrangements for managing the construction process so that the core objectives on building safety and other specific Building Regulation requirements are met. The Report proposes that more stringent requirements are placed on the client to allow for sufficient time and resources during the procurement stage in order to deliver the core objectives. Similarly, when appointing key dutyholders, the client must ensure those dutyholders have the required skills, knowledge and experience to sufficiently prioritise building safety. The client will also be responsible for initiating the newly proposed information management system the Golden Thread.
The Report also proposes that clients confirm at practical completion that, to the best of their knowledge, the works carried out meet building safety requirements. This is a particularly important responsibility and one which will be seen as a way to focus the mind of the client to health and safety matters and to have a documented point of liability should anything go wrong.
As a result of these new responsibilities, there may be an increase in clients appointing an administrator or similar role who will assist the client to understand and focus on their responsibilities from a health and safety perspective.
Hopefully the legislation will accurately define what clients need to do to discharge their new duties.
The next blog in our series will focus on the other key dutyholders - designers, contractors, Principal Designers and Principal Contractors – and consider the Report’s potential impact on them if and when the Report’s recommendations are implemented.
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