1. The purpose of this paper is to provide guidance to inspectors (from HSE and local authorities) who may be required to consider or enforce the Construction (Design and Management) Regulations 2007 (CDM 2007). In most cases the status quo remains as it was with CDM 1994.
2. CDM 1994 and the Construction (Health, Safety and Welfare) Regulations 1996 (CHSWR) are both fully revoked by CDM 2007 which combines the main elements of both former sets of regulations into CDM 2007, with some significant differences.
3. Paragraph 4(a) of Schedule 2 to the Health and Safety (Enforcing Authority) Regulations 1998 (HSEAR) sets out those instances when HSE enforces construction work. Previously, local authorities were able to enforce CHSWR in those limited circumstances where HSE was not the enforcing authority for construction work. (Note: Paragraph 4(a)(i) of Schedule 2 HSEAR is amended by Regulation 48(2) of CDM 2007). By virtue of Regulation 22 of CDM 1994, local authorities were never empowered to enforce CDM 1994.
4. The effect of the changes is that CDM 2007 can now be enforced by both HSE and local authorities, but where and when HSE or the local authority has enforcement responsibility for construction work is unchanged, and is still determined by HSEAR asHSEAR outlined in paragraphs 5-7 below:
5. HSE will be the enforcing authority for construction work carried out on “construction sites” [1] (where the principal work activity is construction work), or where the work is carried out at HSE enforced premises. HSE will also enforce construction work carried out at local authority enforced premises by persons who do not normally work at the premises if:
Local Authority enforcement of construction work
6. The local authority will be the enforcing authority for construction work at premises where they are the enforcing authority, where construction work is carried out by persons who do not normally work at the premises, if:
7. The local authority will also be the enforcing authority for all construction work carried out at premises enforced by the local authority, if the work is carried out by persons who normally work at those premises, whether or not the project is notifiable.
8. As local authorities are not prohibited from enforcing CDM 2007, the revised regulations provide the flexibility for local authorities to enforce in circumstances where they were previously unable to do so. Essentially, this means that local authorities are able to follow-up issues with construction clients and designers. The following provides some practical guidance on how this can be carried out, with due regard for legal powers and current levels of training, knowledge, and experience.
9. Where the main activity carried on by an undertaking falls within Schedule 1 of HSEAR, then the enforcement responsibility for health and safety is with the local authority. If that organisation/business also procures construction work as part of its business undertaking, then the local authority may wish to discuss with it the client duties under CDM 2007 and even enforce if necessary, regardless of whether or not the construction project is one that the local authority would have powers to inspect if it was carried out.
Example 1:
The management company of a shopping mall frequently arranges for construction work to take place, although it is mainly minor refurbishment and maintenance. The construction work itself is always segregated from the public and employees of shops, so comes within the remit of HSE to inspect. Sometimes it lasts over 30 days and so is notifiable, other times it is not. However, the shopping mall is inspected by the local authority EHOs at regular intervals to ensure general compliance with health and safety requirements.
Following the introduction of CDM 2007 the local authority decided to conduct their next inspection on a broader basis. Although no construction work was taking place at the time of the inspection, the EHO discussed how the management company of the mall intended to comply with their duties as a client for construction under CDM 2007. In particular, they asked how contractors were assessed for competence before contracts were awarded (Reg 4), and how they would co-ordinate to manage any risks to shoppers and other employees in the mall (Reg 6). The management of the mall were unaware that they had a duty to ensure that the general arrangements for managing a project should be suitable to ensure the health and safety of any person.
The EHO was faced with two options. Where the EHO did not have sufficient knowledge or training to deal with the matter, he/she could refer it to the local HSE Principal Inspector for Construction for HSE to deal with, or to provide advice to the EHO. Alternatively, where the EHO felt comfortable about his/her knowledge, the EHO could provide advice to the company, and direct their attention to the CDM ACOP and the industry produced client guidance.
Having provided advice and guidance to the management company, the EHO requested the company to confirm what action they would take to comply with their duties. The company were unable to provide any satisfactory explanation and appeared to be ignoring the issue. The EHO decided to contact the HSE Principal Inspector (PI) for construction, to discuss enforcement with an Improvement Notice. The Principal Inspector thought that this was a possible option, but agreed with the EHO to jointly intervene when the next notifiable project was carried out, to examine how the management company complied with its duties in a practical situation. The EHO and HSE PI could then jointly decide the most appropriate course of action, and if enforcement was necessary, either the EHO or HSE PI could initiate it and follow it through to a conclusion.
10 In certain circumstances where the organisation is large, multi-site, or frequently procures construction work, there may already be HSE contact with them relating to construction issues. Local authority inspectors may wish to check with the local HSE construction inspector if there is any HSE involvement with the organisation, and decide locally whether HSE or the local authority should take the lead on any issues relating to construction procurement. (Also see paragraphs 17 & 18 below).
Example 2:
An EHO carried out an inspection at a medium size supermarket chain that had a store in the local town. The EHO was advised by the store manager that some major refurbishment work and a new extension was planned in 6 months time. The EHO asked the store manager how he dealt with client duties under CDM, but the manager explained that “head office did all that”.
The EHO decided to contact the HSE construction PI to let him know of the intended extension work. The HSE PI thanked the EHO, because he was aware that this supermarket had a poor record with safety, mainly due to engaging foreign contracting companies who appeared to be unable to comply with CDM. The EHO also advised the HSE PI that the supermarket was on the Lead Authority Partnership Scheme (LAPS), and gave the HSE PI the details of the contact at the lead local authority environmental health department.
The EHO was able to have no further involvement with construction matters on CDM. The HSE PI contacted the lead authority, who was unaware that the supermarket had a long record of procuring construction work which was carried out dangerously, putting construction workers and shoppers at risk. The HSE PI advised his HSE colleagues of the lead authority contact. When an Improvement Notice was later required to be served on the supermarket by the HSE PI, for non-compliance with CDM 2007, HSE kept the lead authority and local EHO advised.
11 Local authorities will continue to have responsibility for health and safety inspections of the general office activities of construction designers (eg architects, structural engineers etc) in accordance with Schedule 1 of HSEAR Local authorities are not expected to inspect designers’ general compliance with their CDM duties. It is HSE’s intention that the proactive inspection of construction designers’ compliance with their duties under CDM 2007 will continue to be carried out by HSE inspectors, as it was under CDM 1994.
Example 3:
An EHO visited the offices of a medium sized structural engineering practice, to carry out a normal proactive health and safety inspection. After raising some issues about compliance with the Health and Safety (Display Screen Equipment) Regulations, the head of the practice asked if the EHO wanted to review their internal procedures for complying with CDM 2007. The EHO declined, and explained that general compliance with CDM 2007 by designers was a matter normally dealt with by the HSE.
12 However, there may be circumstances where local authorities will choose to exercise their ability to inspect or enforce under CDM 2007 with construction designers, where this is in connection with matters arising from the local authorities’ normal inspection and enforcement duties.
Example 4:
A local authority became aware that over the course of the previous 3 months, they had received several RIDDOR reports of members of the public having slipped and been injured at a supermarket. The local authority decided to investigate the circumstances, and a visit to the store revealed that a new floor had been laid approximately 14 weeks earlier. It appeared that the design specification of the floor was relevant to the investigation, and the EHO decided to approach the firm of architects who had specified the type of floor surfacing. It became clear that the architect had not received a clear brief, or had misinterpreted it, and the type of flooring specified became quite slippery when wet.
After some detailed questions by the EHO, it became apparent that the architect had little knowledge of the general requirements of CDM 2007 to the design process. The EHO decided to require the supermarket to take measures to increase the friction of the flooring. The EHO also contacted the HSE construction PI, and after discussion they both decided that it was worth intervening with the architect on more general CDM compliance matters. Although either the EHO or HSE inspector could carry out enforcement action, they agreed that where enforcement was for more general design issues (of a wider scope than the EHO’s investigation) then it may be more appropriate for HSE to act. An Improvement Notice was served on the architectural practice by HSE under the Management of Health and Safety at Work Regulations 1999, to ensure that there was provision of training for staff to enable compliance with CDM 2007.
13 Local authorities will continue to have responsibility for health and safety inspections of the general office activities of CDM co-ordinators (formerly called planning supervisors) in accordance with Schedule 1 of HSEAR. Local authorities are not expected to inspect CDM co-ordinators’ general compliance with their CDM duties - every project that a co-ordinator is involved with will be notifiable, and likely to be enforced by HSE inspectors (except in those very rare circumstances outlined in paragraph 7). The proactive inspection of co-ordinators’ compliance with their duties under CDM 2007 will still be carried out by HSE inspectors.
Example 5:
An EHO visited an office premises to carry out a routine health and safety inspection. The premises were sub-divided internally, and part was occupied by a chartered surveyor who also carried out the role of CDM co-ordinator for various construction projects. The surveyor asked the EHO to give an opinion on whether the way he complied with CDM 2007 was suitable. The EHO declined to comment and advised the surveyor to contact the local HSE Construction PI, as the HSE dealt with the enforcement of CDM for the vast majority of notifiable projects.
However, the surveyor then explained that his question was about notifying a construction project where he thought the local authority was the relevant enforcing authority. A local warehouse (enforced by the local authority) was to build a new storeroom, 4m x 5m in size. The warehouse happened to employ 2 warehousemen who used to be jobbing builders. The 2 employees were going to carry out all of the building work themselves, and it would take them more than 30 days, so it would be notifiable. In these circumstances, the local authority would be the enforcing authority for the construction work (see para 7 above). To whom should the surveyor (as CDM co-ordinator) send the F10 notification form?
The EHO said this was an extremely unusual set of circumstances, but Reg 21(1) of CDM 2007 required notifications to be sent to the HSE (even if the local authority was the enforcing authority for a notifiable project).
14 As in paragraph 12 above, there may be circumstances where a local authority chooses to intervene with a co-ordinator, in response to matters arising at premises for which they have responsibility. CDM 2007 enables the local authority to take such action if necessary. It is recommended that the local authority liaise with the local HSE construction inspector prior to this, particularly if enforcement action is being considered.
Example 4 expanded:
See example 4 above. The EHO decided to make some additional enquiries as part of the investigation. As part of those enquiries the EHO wanted to find out what pre-construction information had been provided to the designer by the client. Knowing that it was the duty of a CDM co-ordinator to collect the pre-construction information and provide it to designers, the EHO visited the co-ordinator to ask what information had been provided.
The provision of information appeared to be satisfactory, although the EHO spoke to his local HSE construction inspector to confirm his conclusions.
15 Where contractors carry out construction work that falls within the category enforced by local authorities, it will usually be non-notifiable (with the rare exception in para 7 above), and likely to be of relatively limited scope. Local authorities will have the option to decide whether they wish to carry out proactive interventions with contractors under such circumstances, although this was very rarely done by local authorities when they had similar powers under CHSWR 1996.
Example 6:
When carrying out a normal proactive inspection of a sunbed/tanning shop, an EHO realised that construction work was in progress at the back of the shop. A plumber was cutting a small hole through the ceiling to enable a cold water supply feed to be routed down from the tank in the roof void. The work was not segregated from staff or customers, and was quite minor. There did not appear to be any risks arising from the work, so the EHO did not intervene.
A couple of weeks later, the EHO visited the shop again. It became clear that the cold water feed was to provide a supply of water to a new customer toilet that was being built at the rear of the shop. The rear door of the shop was closed, to ensure segregation of employees and customers from the construction work, with a warning sign posted on it. The EHO correctly assessed that as the work was segregated, inspection of the construction work was a HSE responsibility (see para 4 above). There did not appear to be any matters of concern arising from the construction activity, so the EHO did not notify the HSE about it. (In any case, if it was to last more than 30 days the HSE would be notified by the CDM co-ordinator, and if it was less than 30 days the HSE would not be notified).
16 A local authority may decide to intervene reactively to minor construction work that they could inspect and enforce, possibly as a consequence of a complaint or reportable incident. Prior to 6 April 2007 local authority inspectors could enforce CHSWR. From 6 April 2007 local authority inspectors can enforce all of CDM 2007, and not just Part 4 of CDM 2007 (which is mainly the former CHSWR provisions). HSE construction inspectors should be prepared to offer advice or other assistance to local authority inspectors, where this is requested.
Example 7:
A local authority EHO received a report that an employee of a large local insurance broker had been taken to hospital with a broken arm following an accident at work. The EHO visited the office, and found that the broker was having some 1.8 metre high fixed partitions installed between desks, that were to be secured to walls and floors with fixings. During the installation, one of the partitions had fallen, and struck the employee, breaking her arm.
The construction work was of the type enforced by the local authority (see para 5 above). The contractor explained that he had asked the broker (construction client) to move people out of their desks near the work, for the 20 minutes that it took to erect each partition, but the broker had said that it was not necessary. The EHO decided to follow up the incident with a more detailed investigation, looking into the actions of both the contractor and client, before reaching any final conclusions about possible further action. If the EHO decided that enforcement action was appropriate, he could request advice from the local HSE construction PI if necessary.
17 HSE inspectors will still be empowered to inspect and enforce against construction clients if necessary. Where the client is normally allocated to HSE enforcement for their normal activities, there is no complication. Where the local authority is the usual enforcing authority for the client’s main activity, HSE inspectors will have enforcement authority for CDM 2007 purposes, as far as it relates to a construction project that would normally be enforced by HSE (see paragraph 5). This could relate to actual or proposed project(s). It is highly unlikely that HSE inspectors would wish to intervene with local authority enforced clients in relation to local authority enforced construction work (given the very limited nature of this work).
18 Where HSE inspectors intend to intervene with a construction client who would normally be enforced by the local authority, HSE should liaise with the local authority to avoid any conflict of role.
(See also paragraphs 9 & 10 above).
Example 8:
A chain of burger shops was having a new outlet built on the site of a disused public house and car park. The project would take more than 30 days, so was notified to the HSE. The HSE carried out an unannounced site inspection during the middle of the works. The contractor had received very little pre-construction information from the client, and there appeared to be asbestos containing materials (asbestos insulation board partitions) being ripped out of the structure with no control measures.
The HSE inspector carried out further enquiries. The client had failed to have an asbestos survey carried out, and there appeared to be breaches of their duties under CDM 2007 relating to the provision of preconstruction information, and appointing contractors without ascertaining their competence. The HSE inspector was aware that the burger chain might be on the LAPS scheme. He checked the LAPS scheme on the HELA Extranet via the HSE website and found that the chain was on the LAPS scheme [3]. The HSE inspector kept the lead authority advised of the results of the investigation, and requested information about any previous advice the retailer may have had about managing contractors.
19. Proactive inspection of general design activities relating to construction remains a HSE activity.
20. The activities of co-ordinators are usually office based, but are only carried out in relation to notifiable construction projects – which are enforced by HSE inspectors (except in those very rare circumstances outlined in paragraph 7). There is no restriction on the ability of HSE inspectors to carry out proactive inspections/interventions/ or enforcement against co-ordinators, whether it relates to a specific project or their approach to construction projects in general.
21. The activities of contractors are usually enforced by HSE inspectors, and with the exceptions in paragraphs 15 & 16 above, will continue to be enforced by HSE.
22. CDM 2007 offers local authorities more scope to act, albeit within the existing boundaries of HSEAR. The flexibility provided by the revised regulations also creates a valuable opportunity for closer relationships and lines of communication to develop between HSE and our local authority partners, which are likely to enhance the effectiveness of interventions with the construction industry.
Alec Ferguson
Construction Sector
Health and Safety Executive
22 Aug 2007
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