The responsible client
Client duties under the 2015 regulations are still not widely appreciated and some dutyholders are turning to outside help.
More than two years since the Construction (Design and Management) Regulations 2015 came into force, the impact of the abolition of the CDM co-ordinator (CDMC) role is still exercising dutyholders.
Historically the CDMC “managed” the safety and health aspects of a project, whether in the design or construction phase, inputting advice and guidance throughout.
The responsibilities that formerly rested with the CDMC are now divided between the client, who has taken on around 70% of the duties, the principal designer (PD), who assumes around 25%, and the principal contractor (PC), who has inherited around 5%.
The introduction of the PD role in CDM 2015 was flagged up as a major change in the regulations. The PD’s primary function is to identify and eliminate through design foreseeable risk at the preconstruction and construction phases. The PD has to ensure that the architects consider buildability, maintenance and use of the building after it has been handed over.
Many designers (architects) lack the skills or inclination (or insurance) to take on the safety and health duties of the PD. It is because of this that Gillian Birkby of Fladgate Solicitors – legal advisor to the Association for Project Safety – affirms that the PD does not have to be a designer in the traditional sense but must be a professional who can control the design process, with the skills, knowledge and experience to ensure safety and health compliance.
The transfer to the client of most of the responsibility for assuring safety and health standards reflects the fact that the client holds the resources and drives the project. Looking at the power of the various dutyholders, the Health and Safety Executive (HSE) clearly decided that clients must have overall responsibility for projects from concept stage to completion and safety must be regulated so that it is considered from the outset. This is why, if the client fails to appoint others formally to the PD and PC roles and receive their acknowledgement, the client retains the responsibility for discharging those roles.
At the start, the client is responsible for choosing a project team with the skills, knowledge and experience to realise the design safely. There is not a checklist for finding the right PD, but their attributes should include construction knowledge, soft skills to liaise with the parties, and experience of the type and size of the planned works.
At the design stage the client must communicate the needs of future users of the building, and those who visit to carry out maintenance, make deliveries or have to gain emergency access.
There are many examples of implicit duties in CDM that clients can miss if they are not familiar with their duties
The client cannot let building begin until they are satisfied that the construction phase plan (CPP), which sets out the safety and health arrangements and site rules for the construction stage, is developed enough for work to start. This may entail site investigation, site clearance, preparatory asbestos removal, intrusive survey, demolition, soft strip or construction proper.
Once construction starts, the PC is responsible for the site’s safety and health standards but the client retains the duty of ensuring that those standards are maintained throughout the project. In practice this necessitates independent site inspections. If the architects or PC are nominated to the PD role, they still cannot carry out these inspections on the client’s behalf, as the inspector has to be independent of the PD and PC.
There are many examples of implicit duties in CDM that clients can miss if they are not familiar with their duties. For example, the regulations state that a PC cannot start on site unless the client is satisfied that the CPP is sufficiently developed. It doesn’t mention that the client needs to accept this formally, together with site set-up information and site-specific risk assessments and method statements; nor does it mention that a PC is unlikely to pass them a CPP without having received the preconstruction information for the works. In the absence of a PD, the client would have to prepare this.
The new duties are a significant change for construction clients. More than ever, project teams will be looking for them to be specific in their expectations of the finished or refurbished building and how the team will deliver it. Clients have a lot to lose if they do not choose the team carefully, do not ask the right questions, do not challenge the other dutyholders at the right time, or if they do not have the skills, experience, knowledge and training to discharge their duties.
So how do clients limit their exposure to risk? The short answer is to be become informed and surround themselves with people who are both knowledgeable and capable. The right training will provide clients and PDs with the knowledge to discharge their roles. There are accredited courses that cover the duties and explain the tools that can record the design process and construction (buildability) considerations.
A new role has also emerged in the past two years to answer the needs of clients faced with projects on a scale that exceeds their CDM competence and who do not have the time or inclination to train. Enter the client CDM adviser (CDMA).
The CDMA undertakes safety and health duties on the client’s behalf during design and construction. The position is not a recognised dutyholder role in CDM and appointing an adviser does not equate to clients avoiding their duties. Nor is it the same as employing a PD and including these duties under their scope of services. (There are cases of clients who are using the renewal of framework contracts to include client duties in the scope of the PD’s services. It would not be surprising for HSE inspectors to challenge clients who try to divest their duties to others in this way.)
But employing a suitably skilled CDMA can provide the safety and health overlay to a project on which the architect as lead designer struggles to fulfil the PD role or cannot obtain the necessary insurance. The client can therefore be satisfied it is in control of the construction design and management process. In these cases, where designers have been reluctant to take on the PD responsibilities, PCs have often been pressured to take on the role, and many do so reluctantly to make their tender pitches more attractive.
If the CDMA is appointed early enough in a project, they can advise the client of their full duties under CDM 2015, and help to prepare the client’s brief and the proposed management arrangements for the project.
They can also help draw up the preconstruction information and ensure it is issued to designers and contractors. They can help ensure the project team has a balanced mix of skills, knowledge and experience to carry it through safely and that a competent principal designer is appointed and can accept the CPP on the client’s behalf as “suitably developed”.
Other ways they can support the client in discharging their duties under CDM reg 4 include:
notifying the project to the enforcing authorities on the F10 form
participating in design risk workshops
attending design and progress meetings and design, review and co-ordination meetings
accepting risk assessments and method statements from the PC on behalf of the client
checking the PC and PD are carrying out their duties
carrying out regular site audits and inspections
verifying that the arrangements for managing the project safely are maintained
checking the PD has prepared the safety and health file and advising on its suitability
advising on arrangements for completion and handover.
An experienced adviser can also add value and reduce risk in the project when the safety and health implications of changes might otherwise be overlooked. One example is value engineering, which is often led by subcontractors such as mechanical and electrical contractors that substitute materials or change the design to reduce costs.
Another is temporary works, which often require design input. If the PD does not have the necessary skills, knowledge and experience, a CDMA who does can raise the safety implications.
It is clear that a client who decides to appoint a CDMA should choose someone familiar with CDM 2015 and how it differs from CDM 2007. Other factors include knowledge and experience tailored to the project; demolition work in a city centre is different from demolition on an industrial park, for example. The candidate should be a good communicator and have the natural authority to influence the other dutyholders on the client’s behalf. Along with references, clients should ask for examples of inspection reports carried out by CDMAs to check that the recommendations for improvements they make are reasonable and practicable.
The new regulations have created an opportunity for clients. The emphasis CDM 2015 puts on them to ensure safety in their projects creates the incentive for them to set high standards in dutyholder and contractor requirements and to “own” good practice in the design and construction of their projects.
CFIOSH is a safety and health consultant at Faithful and Gould and former IOSH president.