Press Release

APS formal response to the CDM review

APS welcomes many aspects of the proposals such as:

• the increased emphasis on client engagement:
• the encouragement for the industry to avoid unnecessary paperwork:
• the focus on effective planning and management from the outset of a project; and the creation of a coordinator as a key advisor to the client. 

 

However we have reservations that the proposals intend this “pivotal” role to be undertaken by anyone in the industry without setting down any standards of competence for those wishing to do so.  The proposals ignore not only the legal and practical interface implications for the various duty holders but also the HSE’s own evidence with regard to how effectively the various duty holders have performed over the past ten years.  This is a very serious omission.

 

Of equal significance is that the proposals do not appear to be supported by the HSE’s own Regulatory Impact Assessment (RIA) in a number of key areas: 

 

AREA 1 - CLIENT

One of the really worrying aspects of the RIA concerns the figures used to assess the cost benefits in relation to clients.  The RIA estimates of client compliance recognise that at best only a third to a half of all project clients will bother to comply even after all the changes – and in some cases they estimate that improvements could be as low as 3%, 5% and 10%.  This is a matter of serious concern.  If Clients are being targeted as the way forward - the way to ensure that duties are properly discharged, that arrangements for H&S are all effectively dealt with and to lead the way in the fundamental change that CDM is supposed to bring  - why are the estimates of future compliance so feeble in critical areas? 

 

The assumption that Clients will make the big difference that the industry needs by taking on board the duties and responsibilities that the proposed regulations will place on them is not borne out by these HSE estimates of current and future compliance. We would like your view on this.

 

AREA 2 - CO-ORDINATOR

In placing more responsibility on the client, the proposals recognise that many clients will not have the necessary skills, knowledge or experience of construction projects and provide for the coordinator as a key advisor to assist clients to discharge their duty.  However, as proposed, the intention appears to be for the “pivotal” role to be undertaken by anyone who is competent to do so – yet the proposals omit any standards of competence. This concept, which is similar to that for the PS in the original regulations, ignores not only the legal and practical interface implications for the various duty holders but also the lessons of best practice as well as the HSE’s own evidence with regard to how the various duty holders have performed over the past ten years. 

 

Over the 10 years since enactment of CDM 1994, the PS not only has gained recognition and understanding by the construction industry but also proved to be effective when appointed at the outset of the project and undertaken as an independent appointment as supported by the HSE's own Revitalising Health and Safety in Construction.  While we welcome, therefore, the proposals with regard to early appointment, the constant reference and inference within the proposals that the PS/coordinator is to be treated differently from any other consultant is unnecessary, misleading and fails to present an understanding of the role and how it is to be carried out.  

 

As the PS fulfils a consultant’s role in the same way for example as the architect or engineer reference to the PS should be exactly as for other consultants where the term is synonymous for the appointee both as the consultancy practice and the individual.  The client expects such appointees to provide the necessary range of skills and expertise for the particular project.  What clients or consultants would not expect would be to tolerate or deal with the legal and practical implications of passing aspects of their service – and duty – from one to the other. 

 

If it is illogical and fraught with problems for both clients and consultants, then it is equally and even more so for the PS/coordinator in the intended role of “client’s friend”.  As one of the key aspects of being a friend is constancy, neither the client, the PS/coordinator, the project nor health and safety will be best served by this “revolving door” or “pass the parcel” concept for which there appears to be no precedent. 

 

Confusion over the proposed  change of title and role will ensure that any benefits from early consideration of health and safety issues will be lost and the industry’s current health & safety record, far from improving, will deteriorate. As a body supportive of what Government is trying to do, we nevertheless see this as completely illogical.

 

The RIA fails to acknowledge not only that many in the industry have expended considerable resources, including time, in order to become and to practice as effective planning supervisors but also that the duties of the co-ordinator, while building on those of the PS, are different and will require those who wish to undertake the role to learn different and additional skills.  

 

It would seem essential that the industry be given adequate time in which to familiarise itself with the legal and practical implications of the new regulations not only to ensure compliance and a smooth transition but also to reflect the HSE’s message of a “new beginning”.  The apparent lack of a realistic transition period is a serious omission of particular significance for the coordinator whose new duties are to be undertaken by the PS where already appointed on projects which are in progress on the date of the regulations being implemented

 

It is equally significant that in the RIA, the PS was estimated to be complying at levels of 60 to 65% on ‘notifiable’ projects and that this compliance is expected to rise to 70 to 74% under the new regime.  While more responsibilities may need to be placed on clients, it is clear that for the regulations to be effective, there has to be a co-ordinator (or whatever name) whose clear duty (not implied function) is to ensure that the essentials are discharged.  APS feels that without such demands, all the Government’s aspirations are going to be in vain.

 

We remain concerned that the role of a co-ordinator is neither fully defined nor scoped in the wording of proposed Regulation 13.  Substantive comments and amendments not only to clarify and strengthen the role of the PS/CDM co-ordinator but also to provide a framework to effect the fundamental change in the culture of the industry are set out in Appendix A as proof of our intent to be as helpful as possible to Government

 

AREA 3 - DESIGNER

HSE statistics and research show that designers are still failing to take those actions necessary to meet their fundamental responsibilities under CDM 1994 (see reports RR156, RR218, and HSE Designer Initiative Reports for 2003, 2004 and 2005).  Indeed, costs for familiarisation with the regulations have been estimated in the RIA and are based on only 50% of design firms complying.  This appears to be an explicit and alarming acceptance of non-compliance by half of all design firms.  We know of no other area of Government-led regulation that seems to accept such a level of non-compliance.

 

APS experience, as recognised in the RIA’s estimates of compliance, is that often the only party within the project deign team to inject an understanding of construction health and safety risk management is the PS and that to do so most effectively the role is best undertaken as an independent appointment.

 

In order to be effective, it is essential that the regulations require the co-ordinator to ensure that designers are giving adequate regard to health and safety risk management in their work.  While the proposals require the co-ordinator to “advise on the suitability and compatibility of designs and on any need for modification” that is by no means the same as ensuring that designers are managing risk in their designs.  This aspect of the co-ordinator’s role and duty needs to be developed and expressly stated as confirmed by the many APS Members who are practising designers in their responses to our consultation (Appendix D attached).

 

APPLICATION AND NOTIFIABILITY

While APS welcomes the clarification with regard to the applicability of the regulations, we are concerned that the threshold for notifiable projects is to remain at 30 days or 500 person days.  This means that many small projects will not have:-

·        A requirement for clients to provide information

·        A co-ordinator making sure that designs are suitable and compatible

·        A principal contractor

·        A construction phase plan / start of construction work checking process

·        An H&S File output

 

This failure to reduce the threshold for notifiablity represents a lost opportunity to save lives and reduce injury.   Projects of the size omitted by the threshold constitute an area that the Government has said elsewhere needs to address health and safety risk management

 

If there is to be a significant improvement not only in construction health and safety but in construction generally, then what is needed is a lower notification and applicability threshold, not a higher applicability level merely for ‘simplification’.

 

While logic dictates that all projects should be notifiable, APS believes that given the limits to resources and practical constraints the thresholds must be reduced.  Please see Appendix A for our detailed suggestions on this point.

 

CONCLUSION

APS believes the rationale for effecting a change through increased client performance is fundamentally flawed and not borne out by the evidence.  The RIA fails to demonstrate any significant impact on client performance, fails to promote improved health and safety risk management in the industry and will lead the industry to reflect on the opportunity lost in this review to effect any significant improvement.  APS believes that on the basis of the RIA there is insufficient evidence supplied by the HSE in support of the proposed CDM Regulations to effectively deliver improved client engagement and compliance and so achieve the cultural changes HSE seeks. APS believes that this position is reinforced by the results of its own extensive survey of member views. This position can, in its view, only be addressed by significantly strengthening the role and duties of the Co-ordinator and modifying and / or extending other duties and regulations.

 

APS welcomes a number of the proposals for the new Regulations such as the structure of the proposed CDM regulations by grouping the requirements by duty holder; the recognition of the influence of clients on the whole process and particularly on ensuring that health and safety issues are identified and communicated to the right people at the right time but is seriously concerned that the objectives of the new regulations will not be met without incorporation of the amendments and developments to the proposed regulations suggested in the attached Appendices.

 

As these new regulations provide a singular opportunity to develop construction health and safety risk management we commend the points made above and in the attached appendices for consideration in refining current proposals in the firm belief that what is best for H&S risk management must prevail if this opportunity to change the culture of the UK construction industry is not to be lost. APS represents a significant knowledge base in the discharge of current CDM duties and believes that its views have been informed by extensive practical project experience which, if reflected in development of the proposed regulations could help the industry meet its safety and health objectives.

 

The Association also confirms its willingness to contribute to any forum at which our specific proposals can be debated and where its particular expertise can contribute to an effective way forward.

 

Notes to the Editor:- Further information from Kirsty Richardson at APS on 0131 221 9959 or kirsty@aps.org.uk

1.        The Construction (Design and Management) Regulations 1994 (CDM) and the Construction Health, Safety and Welfare Regulations 1996 were enacted to meet the requirements of Directive 92/57/EEC, the Temporary or Mobile Construction Sites Directive.

2.        The Association for Project Safety has over 5,000 members drawn from all disciplines in the        construction industry and has become the leading UK representative body for the planning supervisor.

3.        One the most significant strengths of APS has been positioning of planning supervisors at the operational heart of CDM and health and safety risk management and the knowledge that flows from this; knowledge of how the process really works; what Designers and Clients can contribute; how they should work to achieve this; and how contractors can best be involved in the design process.

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