At its meeting towards the end of 2015, the Construction Industry Advisory Committee (CONIAC) reported that the majority of its members thought that the latest Construction (Design and Management) Regulations (CDM 2015) did not require an approved code of practice (ACOP).
The final decision on whether or not an ACOP will be produced will be made by the board of the Health & Safety Executive (HSE). However, it now seems likely that it will follow CONIAC’s recommendation that the case for an ACOP has not been made.
This potential outcome has generated further debate and views have been expressed on both sides of the argument.
When CDM 2015 was introduced in April 2015, the HSE produced a guidance document, L153, to accompany the new regulations, but this was not as comprehensive as an ACOP. In addition, a number of other of organisations, such as the Construction Industry Training Board, published their own information for principal designers, designers, contractors, and other roles included in the new legislation.
At the time it was understood that an ACOP was still under consideration and the general perception was that, as with the old ACOP, by complying with its instructions, a duty holder would be able to demonstrate that it had done enough to comply with CDM 2015.
However, it now appears that this initial view of the need for an ACOP has changed. In fact, it seems that the foundations of what we are now seeing go back much further than the introduction of CDM 2015, and essentially are a consequence of the HSE review of ACOPs that was undertaken after the Lofstedt Review of health and safety regulations in 2012.
This introduced a set of principles for producing future ACOPs that were designed to provide users with confidence in how to comply with a specific law or regulation. Importantly this review also required that any new ACOPs should be shown to add value, be considerably shorter and be ‘signposting’ in nature – and it is against these measures that the need for a new CDM ACOP is now being determined.
It was as part of this consultation process that CONIAC reported that the majority of its members thought that the CDM regulations were already well established and that an ACOP would not add any value.
It added that an ACOP would not meet the needs of SMEs, and would be confusing for smaller duty holders and domestic clients. In addition, it was thought that the general inflexibility of an ACOP could block progress because the lengthy process associated with any amendments would not respond quickly enough to changes in practice and innovation as they became available.
In response to these arguments, the main views put forward by members in favour of an ACOP largely reflected its special legal status. This allows concerns to be raised without fear of victimisation, reinforces messages about employer duties and provides the only true and definitive benchmark for compliance.
However, in its conclusion, CONIAC refuted these points by pointing out that with the huge range in size and nature of construction projects carried out, a single, short signposting ACOP would be unlikely to bring greater certainty to compliance and the management and control of risks than is provided by L153.
Furthermore it claimed that developing a number of separate ACOPs for sub sectors would only serve to duplicate, confuse and proliferate guidance.
Until the HSE makes a final decision, this is where matters currently stand, but it may be worth reflecting that when CDM 2015 was introduced, part of the rationale was to eliminate previous confusion and clarify precisely when CDM is applicable, particularly in relation to the domestic market.
As a result, the current regulations now capture all construction activities and have de-coupled the duties required of a CDM co-ordinator and principal contractor from when a project is notified.
This means that the CDM regulations are now required to be understood by a greater number of people to ensure compliance for all types of construction activities. As a result, there are many who would say that there has never been a greater need for sub sector guidance and the clarification of the regulations to be provided.
CONIAC did acknowledge this position in its report by highlighting those views that mentioned the need for additional Q&As issued for inspectors as an addition to L153, having more additional FAQs on the HSE website, and producing proportionate guidance by industry sectors without the involvement of the HSE to contextualise what is necessary to comply with duties within the sector depending on the size of the business or project. Members also referred to some new consolidation of examples included in the 2007 ACOP into case studies.
As well as best practice, the lack of an ACOP also poses questions of competence. The previous ACOP had a series of questions which specifically targeted the competency needed to undertake a CDM role. This has now changed, with the new regulations requiring individuals/organisations to have the necessary skills, knowledge, experience and capability to undertake a role.
In practice this can be a very grey area and until test cases emerge, the lack of an ACOP offering examples or a more defined application means the task of assessing who to employ for a specific task is very difficult and open to interpretation, only really making reference to PAS91 and Safety Systems in Procurement (SSIP).
As an example, the Contractors Health & Safety Assessment Scheme (CHAS) offers accreditation to designers and contractors and formerly CDM co-ordinators. When submitting to CHAS now, there is a new category for accreditation to principal designers; so if an individual or organisation has CHAS accreditation as a designer, are they competent to be a principal designer?
Overall, there would certainly appear to be a case for having greater clarification, direction and examples of best practice in all of the construction scenarios now covered by CDM in order to ensure the provision of more clarity and transparency in the application of the regulations.
Whether this information is best provided in an informal context or included in an ACOP is the nature of the debate now being carried out, but in the meantime there is understandably some concern over the increased risk of enforcement actions and penalties.
Although CONIAC’s view on this is that there is no evidence that compliance or prosecution outcomes will be affected by the lack of an ACOP, there are many still asking the question whether this is really the time to be without an ACOP, given the expansion of CDM and the numbers of fatalities and accidents still affecting the construction industry.
The ACOP jury is out and the construction sector awaits the HSE’s decision with considerable interest.
About the author
Christian McCale is project director of Innov8, a specialist in CDM and construction site safety, and part of Lucion Services.