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| Issue No: | 33 |
|---|---|
| Published: | Summer 2006 |
| Article No: | 5 |
| Author: | Patricia Nathan-Amissah |
| Title: | CDM - Let 'The Client' Beware |
Patricia Nathan-Amissah explains that changes expected early in April 2007 enhance the client's role under CDM and remove a client's right to 'contract out' their responsibilities to a 'client's agent'.
The Construction (Design and Management) Regulations 1994
The UK’s Construction (Design & Management) Regulations 1994 (amended 2000) (CDM 1994) came into force on 31 March 1995. One of their prime aims was to improve health and safety in the UK’s construction industry, at a time when the construction industry had an appalling record for accidents and fatalities, many of which could have been avoided by early planning and proper management.
CDM 1994 imposed duties on all those involved in the construction process including contractors, designers, clients, and planning supervisors. Under the new regulations, the planning supervisor role will be removed and a project coordinator will be introduced instead.
The Construction (Design and Management) Regulations 2007
The revised detailed guidance notes which accompany CDM 2007 entitled 'managing health and safety in construction' published by the Health and Safety Commission (the Approved Code of Practice (ACoP)) was approved in February 2007.
CDM 2007 and ACoP came into force at the beginning of April 2007. This new legislation is an amalgamation of CDM 1994 and the Construction (Health, Safety and Welfare) Regulations 1996, following extensive consultation post CDM 2004 by the Health and Safety Executive. These new regulations enhance the client's duties on the basis that the client is in a unique position, in terms of resourcing a project and making appointments, to manage health and safety. The client is not expected to plan or manage the projects themselves - merely to ensure that things are done. The emphasis is on the early management and planning of developments. CDM 2007 aims to clarify (with some changes outlined below) the roles of the principal dutyholders and to emphasise the need for dutyholders to work effectively together.
The ACoP is more detailed than before. The ACoP contains guidance for all dutyholders and has a special legal status. If a dutyholder is prosecuted for breach of CDM 2007 and it is proved that ACoP was not followed the onus is on the dutyholder to show compliance in some other way.
This article will focus on the duties of 'the client' under CDM 2007. One of the key changes to note is that the client's legal responsibilities can no longer be 'contracted out' to an agent. A client's agent can still be appointed by a client for convenience but the criminal liability under CDM 2007 will always remain with 'the client' for the project.
Who is the client for the project?
Domestic clients do not have duties under CDM. A domestic client is a person who has work done on their own home or that of a family member, that does not relate to trade or business, whether for profit for not. Local authorities, registered social landlords and other businesses who own property would not be domestic clients.
A client is a business or undertaking (including individuals) for whom the project is carried out. So if you are a developer and as part of your business you construct houses for subsequent sale to domestic clients, you have duties as the client under CDM 2007. This would be the case even if a purchaser buys before the work is completed, as it is the developer who has arranged the construction work.
The same principle applies where the construction work is planned and procured by a third party, for example, under a development agreement. If you are in control of the project, are paying or will pay for the activities which comprise the project and initiated the project, then you will be the client under CDM. The important thing is that the client is identified and, if there is more than one possible client, the parties involved identify and agree who is the client. If this is not done, there is a risk that an unsuspecting party will be responsible for the ‘client's duties’ under CDM 2007.
As the above examples show, it is not always clear who is the client. If you are unsure whether you are the client under CDM you should contact your local HSE office as early as possible.
Client's duties under CDM
CDM 2007 distinguishes between:
- duties imposed for all construction work (including those which are non notifiable); and
- additional requirements for projects above the notification threshold (projects likely to last more than 30 working days or involving more than 500 person days of construction work)
As a client, your duties will depend on whether CDM 2007 applies and whether the project is notifiable or non-notifiable as defined under CDM 2007.
Duties for all construction projects
The client is responsible for:
- checking the competence and resources of appointed designers, contractors and other team members;
- ensuring suitable management arrangements are in place;
- providing adequate project resourcing and construction information to contractors and designers at all stages;
- providing pre-construction information to designers and contractors.
Client's duties for notifiable projects
Where the project is a notifiable project in addition to the above the client must:
- appoint a competent CDM coordinator in writing whom they can rely on for advice; and
- to assist with the client's duties and to co-ordinate the arrangements for health and safety during the planning phase
- appoint a principal contractor to manage the construction work; and
- ensure that the construction phase does not start until the principal contractor has prepared a suitable construction phase plan and there are suitable welfare facilities; and
- make sure the health and safety file is prepared, reviewed or updated ready for handover at the end of the construction work.
During the parliamentary debate on CDM 2007 on the 10 May 2007, the ultimate responsibility of the client for carrying out its duties (some of which are absolute obligations) was discussed. One view that was tabled was that the responsibility for the construction phase plan being in place was thought to be better managed by the contractor.
The important thing to note is that, as a client, whilst you can rely on advice and guidance from a CDM coordinator the legal responsibility cannot be passed on. Consequently, being clear who is the client, the choice of co-ordinator and the terms of their appointment will be very important. If the client fails to appoint a principal contractor or CDM co-ordinator, he will be treated as if he was himself responsible for those roles.