The six month transition period for CDM 2015 ends today, 6 October 2015. Since 6 April, transitional provisions have been in place to allow ongoing projects time to adapt to the new regime. Now that time is up and CDM 2015 is for real.
For the last few months, we’ve been scrutinising the detail of the new regime to understand how it will operate from 6 October. I thought it was time to take a step back from the minutiae and revisit the key changes that CDM 2015 introduced and how they are working in practice.
Background to CDM 2015
It was obvious from the start that CDM 2015’s predecessor would have to change. CDM 2007 was a veritable beast of regulation. Bureaucratic and unwieldy, it lasted four years before the government announced that it would be put out to pasture.
Over the next couple of years a flurry of consultations and papers did the rounds. Different views were mooted. The dubious Red Tape Challenge and the need to shoehorn the Temporary or Mobile Construction Sites Directive into national legislation informed the approach. The overall message was clear: CDM 2007’s successor would be sleek, simple and user friendly.
A date for implementation was set for 6 April 2015. Everyone sat back and waited for the promised draft legislation and guidance. CDM applies to most construction projects, so however wonderful CDM 2015 was going to be, industry still needed time to get up to speed on the changes. Finally, on 9 January, with less than 3 months to go, HSE issued draft guidance containing draft legislation.
Mild panic ensued, as it quickly became clear that CDM 2015 entailed some serious changes to how construction projects would be run. The draft HSE guidance simply didn’t go into enough detail as to what was required.
This was no beauty to CDM 2007’s beast. CDM 2015 was a beast in its own right and arguably much nastier than CDM 2007. Clearly it would need to be (very) quickly tamed to avoid unwanted sanctions.
What were the changes that invoked such unease?
- Abolition of the CDM co-ordinator. This looked to be a drastic change. It meant the destruction of an entire industry born from CDM 2007. However, the reality is that – while the CDM co-ordinator may have lost its statutory footing, it still appears to have a role on some projects. Over the past few months, we have seen some CDM co-ordinators take on the role of “CDM adviser”. This is primarily to ensure that clients have the level of skills, knowledge and experience (SKE) required by CDM 2015. Even HSE has informally recognised this approach and the Association of Project Safety (APS) has issued a model CDM adviser appointment.
- Introduction of the principal designer (not the CDM co-ordinator in disguise). This looked, and indeed is proving, to be a major change. The problem is twofold. First, the definition of who may be “principal designer” is unclear at best. Secondly, nobody wanted to carry out the role initially. In certain quarters it was referred to as “uninsurable”. This was bad news for the commercial client, because if it didn’t appoint a principal designer, it would have to perform the function itself. Additionally, the client is now statutorily obliged to satisfy itself that the appointed principal designer has the relevant SKE for the job. Even HSE recognises that this is a tough one which is why it recommends, informally, that it may be wise to appoint a CDM adviser where SKE is an issue. Now 6 October is here, the time for academic debate is over and judgment calls are having to be made. More guidance from HSE on this topic, whether formal or informal, would be invaluable.
- Increased client duties. Again, this was not good news for the client. All of a sudden it had a plethora of new obligations, including absolute duties to make suitable arrangements for managing and monitoring projects and to notify HSE if the project met the threshold criteria. As a result, over the past few months, we have helped make sure our clients are up to speed on what they need to do to comply with CDM 2015.
- Application to all clients, not only commercial clients. This is not as bad as it sounds for domestic clients because most of their duties are automatically delegated to other CDM dutyholders. However, some burdens do remain, for example appointing parties with the relevant SKE level. Again, the key has been to raise client awareness of what they must do.
- Changes to the HSE notification threshold. HSE now needs to be notified of projects exceeding 500 person days or “longer than 30 working days” with “more than 20 workers working simultaneously”. While not substantially more onerous than CDM 2007, the issue here is that it is the commercial client that must notify HSE, not the CDM co-ordinator. However, the commercial client can delegate this duty and we have been seeing this happen. For the domestic client, the duty is automatically passed to the contractor, principal contractor or principal designer (if instructed in writing to do so).
- Written construction phase plans for all projects. CDM 2015 requires construction phase plans on all construction projects, not just notifiable ones. For big projects where these plans were already required this will not be an issue. However, for smaller projects where these plans were not previously required, this may have cost implications.
- Less competence bureaucracy. CDM 2015 adopts a simplified approach to competence, but retains a general requirement for those instructing others to ensure they have the appropriate training and information. This could be a positive move in the long run, but the benefits may take a while to emerge while everyone gets up to speed on the new competence criteria.
- Additional CDM duties no longer triggered by notification but by the appointment of more than one contractor. This is a big change and one that clients need to be aware of.
- Approved Code of Practice (ACoP) abolished and replaced with new guidance. Guidance is always welcome. The problem is that the guidance so far provided by both HSE and CITB/CONIAC simply doesn’t go far enough. Judging by the volume of questions on the HSE construction discussion forum and the “informal” guidance issued by HSE since April, industry still needs a thorough explanation of how CDM 2015 is intended to apply. If this runs to 200 pages, so be it. This time, more is definitely more.
So what now?
I think it is clear that CDM 2015 is certainly a beast. Can it be tamed? In the long run, I think so. As with any change, it will take some getting used to. 6 October is here and everyone has been forced to jump from the safety of transition and crystallise their approach. Many questions remain unanswered, not least who can be principal designer in various situations, but also wider issues in relation to enforcement and sanctions.
HSE is due to decide whether to publish an ACoP later this year. Meanwhile it continues to issue “informal” guidance. My sense is that knowledge is going to be key to taming this particular beast, so here’s hoping for an ACoP.