HSE's explanatory memorandum
5 March 2007
This excellent document on the HSE web site is both very long and very clear on the background and intentions of the new CDM 2007 regulations.
EXPLANATORY MEMORANDUM TOTHE CONSTRUCTION (DESIGN AND MANAGEMENT) REGULATIONS 2007 NO. 320
CDM 2007, together with the supporting Approved Code of Practice (ACoP), have been developed in line with Better Regulation principles and aim to reduce construction accidents and ill health by:
- being flexible and accommodating the wide range of contractual arrangements to be found in the construction industry;
- emphasising the need to plan and manage work rather than the bureaucracy associated with it;
- emphasising the communication and co-ordination advantages of duty holders working in integrated teams; and
- simplifying the way duty holders assess competence.
In seeking to achieve the above objectives, account has been taken throughout development of the proposals of the differing needs and experience levels of all those involved in the construction industry. The regulatory package as a whole has been designed to reduce the overall burden of bureaucracy. The intention is that, ultimately, compliance will not only increase (because people find it easier to understand what they (and others) need to do) - but also that this will be achieved with more focus and less wasted effort - resulting in business, as well as health and safety, benefits.
The main changes which have been incorporated into the revised Regulations and ACoP are:
- an enhanced duty on clients to better reflect the influence which client's have on health and safety standards on sites.
- the removal of the facility for the client to transfer their criminal liabilities under CDM 94 to a 'client's agent;';
- a new duty holder (the co-ordinator) to replace the existing planning supervisor. Their key new role will be to assist the client in meeting their duties under the Regulations. co-ordinators also retain the existing main duties of Planning Supervisors carried over from the CDM 94 Regulations, and
- much improved guidance for those who must assess competence of persons/organisations before appointing them.
Enhanced Duties of the Client
The enhanced client duties are the key policy innovation of the revised Regulations. They make existing duties in the Health and Safety at Work etc. Act 1974 (HSWA) and the Management of Health and Safety at Work Regulations 1999 (MHSWR) more explicit, and place a duty on the client to take reasonable steps to ensure that there are, and continue to be, suitable management arrangements to ensure health, safety and welfare on site, and that the design of any structure intended for use as a workplace complies with the Workplace (Health, Safety and Welfare) Regulations.
Clients are not required to manage the work themselves, but they are required to make sure that others have arrangements in place that will control risks associated with the construction work. We believe this motivates them to use their substantial leverage with the other project participants to ensure that these things are done properly. It also addresses a need, identified by the industry itself, to empower the co-ordinator - responding to criticism that the previous role (the Planning Supervisor) had not worked as well as we would wish. (see paragraph 10 below). The costs and benefits of these changes are considered in the body of this Regulatory Impact Assessment (see section 6 for benefits and section 7 for costs).
The existing CDM provision for appointment of a client's agent has been removed from the revised Regulations. The primary purpose of this provision was to allow clients to contract with another party (the 'client's agent') to deliver the client's duties on their behalf, and at the same time, it allowed the client to transfer their legal liabilities under the Regulations to the client's agent. Under the new Regulations, clients will still be able to take on the services of a third party to deliver their duties under the Regulations, but they will not be able to transfer their criminal liabilities. This change was made for two main reasons:
- The provision caused confusion. Even though it allowed the transfer of client's legal liabilities under the CDM 94 Regulations, it did not transfer other duties placed on clients by other health and safety legislation. In particular, it did not transfer duties held by the client under Sections 3 and 4 of the Health and Safety at Work etc. Act 1974, or under the Management of Health and Safety at Work Regulations 1999. Most clients thought that if they appointed a client's agent, this absolved them of all of their criminal liabilities under health and safety legislation. Taking out this provision removes this confusion.
- It allowed some clients to 'turn their backs' on the project with impunity, leaving the other dutyholders to deal with the consequences which could include a lack of sufficient resource, unrealistic timescales or a lack of crucial health and safety information.
Since clients will still be able to retain the services of a third party to deliver the client's duties, it is not expected that this will change current practice and therefore no cost has been attributed to the loss of the client's agent provision.
The proposals eliminate the current Planning Supervisor (PS) role (which has not worked as well as we would like) and introduce "the co-ordinator". The main role of the co-ordinator is to advise and assist the client to comply with their duties under the regulations. In particular, they are required to:
- assist the client with the appointment of competent contractors and designers;
- advise on the adequacy of other duty holders' arrangements for controlling risk arising from the project;
- co-ordinate design work, planning and other preparation for construction;
- liaise with the Principal Contractor about design changes during construction;
- notify HSE about the project;
- produce or update the health and safety file.
Transposition Note for Council Directive 1992/57/EEC of 24 June 1992 on the implementation of minimum safety and health requirements at temporary or mobile construction sites (eighth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) as implemented in Great Britain by the Construction (Design and Management) Regulations 2007 (CDM 2007).
This annex contains summary information about tasks and responsibilities before and during construction for instance.