The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
The CDM 2015 will apply to construction projects starting after 6 April 2015. For projects that have already started at this date, there are transitional arrangements which we summarise below.
Summary of responsibilities under and changes made by the CDM 2015:
- Suitable arrangements: the client must make and keep under review suitable arrangements for managing a project, including allocating time and resources, in particular to ensure that:
- so far as reasonably practicable, construction work will be carried out without risk to health and safety; and
- site welfare requirements are met (for example, providing toilets and washing facilities);
- Pre-construction information: the client must provide the “pre-construction information” to all contractors and designers i.e. irrespective of when they become involved in the project;
- CDM co-ordinator: the CDM co-ordinator role is replaced by the “principal designer” who will have control over the pre-construction phase of a project;
- Notifiable projects: the client must notify a project to the HSE if it is scheduled to:
- last more than 30 working days and have more than 20 workers working simultaneously at any point (the reference to working days and to 20 workers is an addition to the position under the CDM 2007); or
- exceed 500 person days;
- Notification to HSE: this is now the responsibility of the client (under the CDM 2007 the client used to procure the CDM co-ordinator to do this) which the client must do as soon as practicable and in any event before the construction phase begins. In contrast to the position under the CDM 2007, the obligation to appoint a principal contractor and (now) principal designer is no longer dependent on whether or not a project is notifiable. A client must fulfil the duties of a principal contractor or principal designer if it fails to appoint either of them. All appointments must be in writing;
- Principal designer: the client's obligation to appoint a principal designer is triggered when the project involves (or is reasonably likely to involve) more than one contractor. The principal designer must:
- plan and monitor the pre-construction phase and during it co-ordinate matters relating to health and safety;
- provide and assist the client in providing the pre-construction information to all contractors and designers;
- assist the principal contractor in drawing up the construction phase plan by providing relevant pre-construction information;
- Health and safety file: the client must ensure that this is prepared and kept up to date by the principal designer and that the principal designer passes this to the client at the end of the project. The principal designer must pass the health and safety file to the principal contractor if its appointment “concludes” before the end of the project;
- Construction phase plan: the client must ensure that this is prepared by the principal contractor (or (sole) contractor where there is only one contractor) before setting up a construction site;
- Principal contractor: the client's obligation to appoint a principal contractor is triggered when the project involves (or is reasonably likely to involve) more than one contractor. The principal contractor must:
- draw up, review and keep up-to-date the construction phase plan;
- provide information to the principal designer for the health and safety file;
- plan, manage and monitor the construction phase and liaise and share information with the principal designer;
- ensure that a suitable site induction is provided and only authorised persons access the site;
- ensure site welfare requirements are met;
- if the principal designer's appointment "concludes" before the end of the project take over the health and safety file which it must then, keep under review and up to date, before handing to the client at the end of the project;
- More than one client on a project: where there is more than one client on a project, those clients may agree in writing who is to be treated as the client for the purposes of the CDM 2015. The process of "election" under the CDM 2007 no longer applies under the CDM 2015;
- Guidance: the Approved Code of Practice which provides supporting guidance on CDM 2007 will be withdrawn and replaced with guidance on the CDM 2015 to be issued by the HSE. The HSE has so far published draft guidance which is available from the HSE's website;
- Domestic clients: unlike the CDM 2007, the CDM 2015 will apply to domestic clients, though most of their duties automatically pass to others involved in the construction project.
Transitional arrangements for projects started before 6 April 2015
- If a project involves more than one contractor and the client has not appointed a CDM co-ordinator, then:
- if the construction phase has not started, the client must appoint a principal designer as soon as practicable; or
- if the construction phase has started, the client may appoint a principal designer (but is not required to do so). If it does not, the principal contractor takes on responsibility for the health and safety file.
- If the client has appointed a CDM co-ordinator:
- if the project ends before 6 October 2015, the CDM co-ordinator can continue until the end of the project;
- if the project ends after 6 October 2015, the client must appoint a principal designer by 6 October 2015;
- in either case, during the transitional period, CDM co-ordinators do not have to satisfy the criteria for a principal designer and the CDM co-ordinator's role continues broadly in the same way as under the CDM 2007 but reflecting the arrangements under CDM 2015 relating to the construction phase plan and the health and safety file.
- If the project involves more than one contractor, the principal contractor must or, if there is only one contractor (sole) contractor, the contractor must draw up a construction phase plan as soon as practicable after 6 April 2015, even if the construction phase has already started.
Steps for clients to consider now:
- If you are about to enter into a building contract or consultant appointment or other agreement relating to construction work, check that it refers to the CDM 2015 and not the CDM 2007. The works or services covered by the contract or agreement will be subject to the CDM 2015;
- For existing projects spanning 6 April 2015:
- appoint a principal contractor if the project involves more than one contractor and ensure that the principal contractor (or sole contractor if applicable) prepares the construction phase;
- appoint a principal designer if the construction phase has not started or if you are expecting the project to continue beyond 6 October 2015.
- If you intend to delegate any of the client duties to a consultant, consider the terms on which you do this carefully as you will remain responsible for those duties being carried out.
For more information
If you have any queries on the CDM 2015 contact Richard More.
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