Changes to CDM Regulations

Are you aware of the recent change in the regulations surrounding the construction industry? The Construction (Design & Management) Regulations, first introduced in 1994 have been updated and it is important that all individuals and companies involved in the construction industry be aware of the changes, which are significant and far reaching.

So what’s changed?

The small “one man band” builders, decorators, plumbers, electricians, joiners etc. now come under the regulations.

If working for a domestic client (e.g. a homeowner wants an extension building) the tradesperson should take on the role of client because the homeowner would not be expected to know what their responsibilities are under the regulations. The tradesperson would also have to complete a Construction Phase Plan (CPP) before commencing the work. This outlines the work to be undertaken, the time frame for the work, who else would be on site (other contractors), welfare facilities, contact details, specific hazards, control measures and emergency arrangements.

Businesses who are taking on a company to carry out construction work need to be aware that if they don’t comply with the new regulations, they could find themselves facing a criminal conviction or a direct claim for personal injury damages if such an event occurred.

Previously, a business would have consulted with a construction company, outlining what they required and the work would be carried out. The construction company or architect would advise the client and arrange for the various trades people to be engaged. Now even engaging decorators falls under the regulations.

It’s no longer the case that the business client can leave arranging everything to the construction company. The business client requiring the work now has obligations and duties. It is vital whoever is going to be in charge of the project in the business understands the CDM Regulations.

Failure to observe and discharge duties under the regulations is more likely now to see companies receiving a substantial fine if they are successfully prosecuted. This can be for two reasons:

i) Businesses do not realise what their obligations are and fail to carry them out. It’s no longer a defence for a business to say that it was taking advice from the builder or architect.

ii) The HSE will increase its enforcement activity in the building sector. Whilst prosecutions of CDM clients have been rare before 2015, it’s expected that this will change now that clients have a wider range of responsibilities and duties.

The risks of ignoring duties and responsibilities under the regulations now carry with them greatly increased penalties.

From the start of February this year, new sentencing guidelines mean that financial penalties imposed on errant companies will be based on their turnover and factors that affect the starting point and the level of the penalty will include the level of culpability and the risk involved. Sole traders may find that they are facing a jail term.

In short, it is no longer possible to assume that there is a certain level of fine that will be applied to all offences; companies that do so will find themselves in for a very nasty shock.

Businesses should also be aware that their problems will not just end with a fine; their insurers may take a dim view of breaches of the regulations and insurance premiums are likely to rise for companies who have failed to discharge their duties.

Prudent action

There are several steps that businesses can take in order to protect themselves from the consequences of contravening the regulations:

• When the project is at the planning stage, time should be taken to visualise the project up and running. Future problems can be anticipated in this fashion.

• If there is a relevant enforcing authority, for example the HSE, they should be notified before the project starts. They may have useful information that will facilitate matters.

• Bear in mind that the builder is not now the only person with responsibilities under the regulations; they now extend to the client or the person who is handling the client’s responsibilities.

• Make sure that the person in the business who is in charge of the building work fully understands the Construction (Design & Management) Regulations 2015

• Take care at the planning stage – ensure you only engage people with the correct skills, knowledge and experience. If more than one contractor is involved, appoint a principal designer and make one contractor the principal contractor

• Do not allow work to commence without first being issued with a Construction Phase Plan (CPP)

• Before engaging contractors, ensure they have the correct insurance for the work they are going to undertake. Check your insurance requirements – do they require further information from the contractors?

• Provide the contractors with the health and safety information they will need to carry out their jobs safely.

• After the project has begun, ensure that regular checks are carried out in order to verify that the conditions at the beginning of the project remain the same, or if they have changed, the necessary adjustments have been made to ensure the regulations are being observed and safe working is being undertaken by all.

• A final word – the regulations are necessarily comprehensive because construction is a hazardous occupation. Some businesses may be tempted to cut out the middleman and do the work themselves. This can be a very dangerous option and is a temptation that should be resisted at all costs.

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