Had you been involved in trying to get construction projects up and running in the past few months you may well be wondering about the demise of CDM Co-ordinators and be making your first acquaintances with Principal Designers. This is due to the Construction (Design and Management) Regulations 2015 which came into force on 6 April this year, the most fundamental aspects of which being the abolition of the old CDM Co-ordinator role and the introduction of the Principal Designer. These new regulations are largely intended as a means to try to decrease the perceived bureaucracy in the old CDM regime. While it’s too early to make an assessment on whether that aim has been achieved, unfortunately there already appears to be significantly differing approaches from construction employers in their interpretation of the new regulations when it comes to the appointment of a Principal Designer.
The intention of the new regulations seems to be to do away with the need for a distinct health and safety role on a project (i.e. a CDM Co-ordinator) by having stipulated statutory health and safety obligations performed by those already involved on a project in a design capacity. The obligations previously requiring to be undertaken by the CDM Co-ordinator have largely been assumed by the Principal Designer in the new regulations. A Principal Designer is required to be a “designer” and have control over the pre-construction phase. A “designer” means any person who (i) prepares or modifies a design; or (ii) arranges for, or instructs, any person under their control to do so. These requirements certainly appear to indicate that a Principal Designer needs to have a large degree of control over a project and in a way that a party appointed in a non-design role (e.g. health and safety consultant) would not.
So it would appear that your Principal Designer ought to be a “designer” in the traditional sense of the word (e.g. architect or engineer) but is this approach being followed in practice?
We have already seen several instances where the intention is for a CDM Co-ordinator to transform into a Principal Designer once the transition date of 6 October 2015 arrives (such date being intended to ease the transition to the new regulations where there was a CDM Co-ordinator appointed before the new regulations came into force). More concerningly though, there appears to be a reluctance within the more traditional design organisations to undertake the Principal Designer role, either on the grounds that they don’t consider they have the skillset to do so, or that their professional indemnity cover doesn’t extend to them taking on such a role. This leaves employers with little choice but to appoint health and safety consultants (including former CDM Co-ordinators) in the guise of Principal Designers.
The new regulations have only been tested for a few months so it is perhaps not surprising that uncertainty reigns but it cannot be said that the issue of differing approaches to the appointment of Principal Designer could not have been foreseen when the regulations were being drafted. Guidance on this issue has been lacking to date, however in the middle of July, a “Q & A” relating to CDM advisers issued by the Construction Sector of the Health and Safety Executive appeared on the website of the Association for Project Safety. While we ought to bear in mind that this Q & A does not appear to have been formally published on the HSE’s own website, its contents do support the interpretation of the new regulations to the effect that Principal Designers should be designers in the traditional sense. The Q & A makes specific reference to design professionals providing designers with the skills to discharge the Principal Designer role. More tellingly though, the Q & A gives consideration to the current dilemma of design organisations who determine that they lack the skills, knowledge and experience (as is stipulated in the new regulations) to be a Principal Designer. It is made clear that the regulations do not allow a Principal Designer to delegate its responsibilities elsewhere, however where there are skillset issues, it is envisaged that the design organisation ought to equip itself with the relevant specialists to be able to fulfil the Principal Designer role (whether by sub-contract or otherwise).
Time will tell as to whether the traditional design organisations adopt a more relaxed and pro-active approach as to undertaking the Principal Designer role. In the short term though, it is anticipated that confusion will continue, driven largely by design organisations lacking health and safety expertise and/or professional indemnity insurance coverage and former CDM Co-ordinators looking to re-brand themselves as Principal Designers. The question of who should undertake the Principal Designer role will always depend on the particular circumstances of a project but employers would do well to remember that the path of least resistance is not always an appropriate approach to take, particularly when there are criminal sanctions for breach of the new regulations.
