Our previous article in this series Construction (Design and Management) Regulations 2015 - What do Clients need to do? | MFMac discussed the duties of clients under the CDM Regs. This article will focus on the role of designers, what they are required to do under the CDM Regs and the practical steps to ensure compliance.
Who is a "Designer" under the CDM Regs?
A designer under the CDM Regs is defined under Regulation 2. A designer is a person or organisation responsible for preparing or changing a design relating to a structure. A structure encompasses buildings, railway and tram lines, pipelines and bridges. A design includes any drawings, design details, specifications and bills of quantities relating to a structure, and calculations prepared for the purpose of a design. Architects, surveyors, engineers and interior designers could therefore all be included within the definition of a designer.
A person can be a designer even if they are also a client or contractor for the purposes of the CDM Regs.
What duties do Designers have under the CDM Regs?
The roles and responsibilities of designers are outlined in Regulations 8 and 9.
Any designer appointed to a project must be satisfied that they have the necessary skills, knowledge and experience for the role. If the designer is an organisation, they must also have the organisational capability necessary to fulfil that role.
Designers must also be satisfied that the client is aware of their duties under the regulations. This includes ensuring that the client provides the designer with any information about the works or site that the designer needs to carry out their role.
When preparing or changing a design, a designer must take into account the general principles of prevention. This includes a review of any pre-construction information to eliminate any foreseeable health and safety risks to personnel or members of the public.
If the designer cannot eliminate those risks completely, they must take steps to reduce them. Any relevant information should be included in the health and safety file and communicated to others as needed. This is in line with the general principle under the CDM Regs to reduce risks to "as low as reasonably practicable". Sufficient information on the design should be provided to assist any other duty holders to comply with their duties under the CDM Regs.
Who is a Principal Designer and when are they needed?
If there will be more than one contractor working on the project at any time, the client must appoint a principal designer. The principal designer has control over the pre-construction phase. A principal contractor must also be appointed (this will be covered in our next series article). The appointments have to be made before the construction phase begins. If a client does not appoint a principal designer, they must fulfil those duties themselves.
What duties do Principal Designers have?
The principal designer is responsible for planning, managing and monitoring the pre-construction phase. They must also co-ordinate the project so that it is without risks to health or safety.
There is overlap in what the principal designer is responsible for under the general designer duties in Regulations 8 and 9. The health and safety file will be reviewed and revised by the principal designer throughout their management of the project. The additional element is that the principal designer will co-ordinate the design process for each part of the project and provide information to each designer and contractor as needed. They must liaise and share relevant information with the principal contractor.
The principal designer is also responsible for assisting the client in providing pre-construction information.
Collaboration with the Principal Contractor
The principal designer must assist the principal contractor with their preparation of a construction phase plan. This document sets out the health and safety arrangements and site rules for when the construction work is taking place.
The principal designer must prepare a health and safety file. This must contain information that ensures the health and safety of any person. The health and safety file must be reviewed, updated and revised throughout the pre-construction phase, taking account of any changes that have occurred.
The principal designer role might end prior to completion of the project. If this is the case, they must provide the health and safety file to the principal contractor, who then has responsibility for its review and revision. This file is passed to the client at the conclusion of the project.
What happens if a Designer doesn't comply with requirements under the CDM Regs?
HSE's enforcement powers, outlined in our first CDM series article, can be applied to the principal designer to the extent that any breach of the CDM Regs is due to failings by a designer or principal designer.
Breaches of duty arise where a designer has failed to sufficiently plan and monitor the works that are to take place. This can be due to not having the required knowledge or skill to carry out the designer role, or simply by way of oversight.
Enforcement action can range from improvement notices being issued by the applicable authority (such as HSE) to the breach being referred to COPFS for prosecution in the most serious cases.
I'm a designer on a project; what practical tips can you give me?
A key intention of the CDM Regs is ensuring that the Designer and/or Principal Designer have the necessary skills, knowledge and experience to ensure that the design process mitigates any health and safety risks. This should be done as far as reasonably practicable.
A Designer should be satisfied that they are aware of the scope of the project and have the necessary qualifications and experience to complete the role. They should also satisfy themselves that the Client is aware of their requirements and that they have provided all the information necessary for completion of the design.
It is best practice to maintain transparent and effective communication with other duty holders and ensure that comprehensive records are kept at each stage. Most importantly, good preparation and monitoring of the health and safety file, including recording any changes made and why, is essential.
If you are looking to speak to someone about the duties placed on designers under the CDM Regs in more detail, or any health and safety steps you need to take when managing a project, please contact a member of our health and safety compliance team and they would be happy to assist.
