Shaping and sharing best practice in construction health and safety risk management

Transcription

1 Shaping and sharing best practice in construction health and safety risk management LEGAL ISSUES: THE CLIENT; COMPETENCE; WELFARE; COLLATERAL WARRANTIES; STATUTORY UNDERTAKERS; TERMINATION; ARCHIVING PROJECT H&S FILES. SUMMARY This Practice Note dealing with legal issues has been compiled from responses by the APS Legal Service to questions from members on a range of topics. 1.0 THE CLIENT 1.1 Is our Client a Domestic Client? We believe that the test is whether the home is the Client s or belongs to a member of his family as ACoP para 29 Reg 2. But this effectively means whether the home is owner-occupied by a Client or member of his family. However, this gave rise to a question of interpretation - e.g. whether the home is freehold or leasehold (which appears to make it owneroccupied); or whether it is short term leased where rent is paid on say a monthly or other period. It also seems it could depend on whether the tenancy is full repairing or not. ANSWER: The question will depend on the facts in each case. It is not actually necessary for the building to be "owner occupied" because the test under the Regulations is whether or not the construction work is being undertaken in "the course or furtherance of a business" (see the definition of "Client" in Regulation 2). If the paying party is the landlord, for instance, they will not be a domestic client. 1.2 A project is to be undertaken for the refurbishment of a house for a person who owns the house and who will reside in the house when the refurbishment works are complete. The contract documents name the employer as an architectural design firm. Under the CDM Regulations would the owner of the house be a domestic Client or would the employer be the Client? ANSWER: In this scenario the architectural design firm appears to be taking on the role of Client, as defined in Regulation 2. The regulations will therefore apply to that firm as Client, as well as in their role as Designers. If the work is Notifiable, a CDM Co-ordinator and Principal Contractor must therefore be appointed. 1.3 If a charity wishes to build or repair their premises that will take more than 30 days and plans to use volunteer labour (some expert in their field and some purely there to help and do what they can) giving of their services free of charge, is the project Notifiable? ANSWER: There is no exemption for charities undertaking construction work. If there is a Client and the work will take more than 30 days or 500 person days, then the project is Notifiable. A charity that is building or renovating premises is a Client because it is, in "the course or furtherance of business" seeking or accepting the services of others to carry out a project (see also paragraph 29 of the ACoP). It is not necessary for those services to be paid for. It is also important to check that there is insurance in place to cover the works and any potential personal injury to the volunteers. ISSN X

2 1.0 THE CLIENT continued 1.4 If we have an overseas Client who wishes to carry out construction work in the UK using a UK Contractor, how would we apply CDM to the overseas Client? Is there anything that we specifically need to be looking at? ANSWER: Applying CDM to an non-uk Client is slightly more difficult if they are also based overseas. In terms of liability the overseas Client is responsible for fulfilling its duties under the CDM Regulations for the project in this country. However if the Client has no assets in this country, in practice if there is a problem as any prosecution following a breach of Client duty would be rather difficult. For the CDM Co-ordinator, this means that if a problem arises and there is an HSE investigation, the CDM Co-ordinator would be more likely to be the focus of HSE's attentions, because the CDM Co-ordinator is based in this country and therefore could be prosecuted more easily. In terms of the running of the project, the CDM Co-ordinator will advise the Client and treat it in the same way as a UK Client. There may be slightly more work for the CDM Co-ordinator to carry out if the Client is less involved in the project because it is based abroad. 2.0 COMPETENCE 2.1 We have a Notifiable project for which designs have been fully completed, we have a lead Designer who works for the Client and all duty holders have been established. There have been some additional works added to the project that require a specialist design. The Principle Contractor at our last meeting has advised that they will appoint the Contractor to carryout the works and also carryout the design. Would the responsibility be with the lead Designer to ensure that any Designers that are engaged on the project are competent and adequately resourced? ANSWER: Regulation 4 states that it is the responsibility of the person appointing a Designer or Contractor to take reasonable steps to ensure that the person engaged is competent. This is supported by paragraph 150(h) of the ACoP, which says that Principal Contractors must satisfy themselves that the Contractors and Designers that they appoint are competent. It is therefore a task for the Principal Contractor, not the Client's lead Designer. The Principal Contractor is free to ask the lead Designer to assist in such assessments, but this would be a separate arrangement between them and would not involve the Client. 2.2 We have been appointed as the CDM Co-ordinator for a major D&B project where the Client has appointed a Technical Advisor to carry out the design up to RIBA Stage D. In response to my request for the Technical Advisor to demonstrate competence in accordance with Appendix 4 of the ACOP, the Technical Advisor has replied that 'as Technical Advisors we attract no design responsibility, we are however charged with appointing and managing the Technical Design Team'. A suitable demonstration of competence has been submitted by each of the Designers appointed by the Technical Advisor (I am very happy with those responses) but the question is, can the leader of a Design Team who is appointed by a Client to provide the architectural, structural and services design for his building exclude themselves from the role of Designer? Clearly, it is almost certain that the Technical Advisor will be influencing the design in terms of programme and resourcing and they would find it very difficult not to contribute to discussions that in themselves may have health and safety implications. Am I right to pursue this or is it acceptable for the Technical Advisor to demonstrate to me that they have adequate processes in place to assess the competency of their design appointees? As the Technical Advisor is the leader of the Design Team, where would they stand in the event of an accident attributed to poor design? ANSWER: Whether the Technical Advisor (TA) falls within the definition of a Designer for the purposes of CDM 2007 will depend on the terms of its appointment and what role it plays in reality. If, as stated, the terms of the TA's appointment give it responsibility to provide architectural, structural and services design for the Client, then there can be little question that the TA would be a Designer for the purposes of the Regulations, notwithstanding that it has sub-contracted much or all of the work to others. On the other hand, if the TA is appointed (and acting) as little more than a contract administrator (in that the TA is only appointing other consultants who in turn report to the Client, even if such reports are co-ordinated by the TA) then, contractually at least, the TA would not be considered a Designer. In such circumstances, however, it would be very easy for the TA to "cross the line" and become a Designer by contributing to discussions about designs prepared by others or, more obviously, by arranging for or instructing design work to be undertaken. If the TA exercises any judgment at all about the design work being performed by the design team (see Example 3 on p.15 of the ACoP, which shows how easily this can occur), it will have taken on the responsibility of a Designer and will be subject to all the duties and competence requirements of the Regulations.

3 2.0 COMPETENCE continued 2.3 We have a University Client who procures Designer and Contractor services for multiple minor work and capital work projects, some of which are OJEU competitions. Currently they pre-qualify both Designers and Contractors using a CDM questionnaire and scoring matrix that they review/score on completion of the stage 2 tender process. Basically my Client reviews the competency of the lowest tender only and develops an action plan with them if they do not reach the pass mark of their competency threshold. I have advised against this but my Client insists they are complying with the CDM Regulations, i.e. assessing the competence of their appointees'. They have stated if they receive 30 applicants for an OJEU for example, they do not have the capacity to score them and they are not required to do so. Please advise what the regulatory/legal requirements are for the procurement of Designer/Contractor services as required by CDM. ANSWER: There is nothing in the Regulations to prevent the Client taking the approach described, but it is important that, as a result of the "action plan" the Designer or Contractor is competent and that they are not appointed before they have attained competence. It should be noted that the courts take a very dim view of Clients that take decisions purely on the grounds of cost that later transpire to compromise health and safety, and might impose a more severe punishment if a Client was prosecuted for a breach of the Regulations and was found to have selected the cheapest Designer or Contractor, knowing them not to be competent - regardless of any action plan that they devised. The Client must also, of course, be careful not to breach the public procurement rules, but that is not a CDM issue. 3.0 WELFARE 3.1 Can a Principal Contractor pass on the requirement to provide welfare facilities to a Main Contractor who is employed to set up and run the site? We have made it clear in the PCIP and Construction Phase Plan that the Main Contractor is to be responsible for the welfare facilities and this is also agreed in the pre-start meetings. ANSWER: The PC's duty under regulation 22(1)(c) is to "ensure that welfare facilities sufficient to comply with the requirements of Schedule 2 are provided throughout the construction phase". It is possible for the PC to discharge this duty by sub-contracting a third party (in this case, the main contractor) to provide the required welfare facilities. It is important to remember, however, that this will not have the effect of making it the third party's responsibility to provide the facilities under the Regulations. If the facilities prove inadequate, the HSE will look to the PC, not to whoever had been sub-contracted to provide the facilities. The PC will therefore want to be sure that the facilities to be provided are sufficient and that the sub-contractor will actually provide what has been specified. 3.2 A Client has appointed a Designer to carry out an initial site investigation, which involves drilling and window sampling for 2 days on site. The query is whether they need to provide onsite welfare facilities for the duration as it is costly and awkward to get these to the area where the works are being carried out. Regulation 2 appears to state that the above is construction work and the Designer is also a "Contractor". Duties of a Contractor therefore apply and they must comply with Regulation 13(7) so far as is reasonably practicable and also that the requirements of Schedule 2 are met, among other items. If this is the case then it was suggested that clean water for drinking can be taken to site in vehicles along with a source of warm and cold water, soap and towels for cleaning. What cannot be easily supplied is a toilet and rest room. As a side note current industry practice is not to provide welfare facilities for short term / Nonnotifiable projects where this type of site investigation is undertaken. ANSWER: The wording to regulation 13(7) places the Contractor under a duty to ensure compliance with Schedule 2, so far as it is reasonably practicable to do so. This means that the Contractor is not required to implement measures that are out of all proportion to the risks or inconvenience caused. What is reasonably practicable will obviously vary depending on the facts. If those carrying out the works are able to access toilet facilities and a safe rest place without undue difficulty or risk, even if this involves leaving the immediate site of the works, and they are notified accordingly, this would be a proportionate and reasonable approach to take and so complies with Regulation 13.

4 3.0 WELFARE continued 3.3 We have recently been asked to carry out a duty that I believe is clearly that of the Client - but without any offer of additional fees! The issue is Regulation 9 which refers to management arrangements in connection with welfare facilities. Given that the responsibility is that of the Client, it seems to me that he would have to commission someone (employ his own eyes or use the services of his Clerk of Works) to inspect the facilities for him. It also seems to me that a difficulty arises where to advise the Client that the facilities provided are in good order someone has to visit the site to check the provisions. I am not convinced that the Regulations are intended to involve the CDM-C in inspection of welfare facilities and on-going arrangements (a) because the CDM-C is only involved in Notifiable projects and (b) because Regulation 9 applies to all projects - whether Notifiable or not. ANSWER: The Client is expected to consider the arrangements for managing e.g. the requirements as to welfare facilities, not the adequacy of the facilities themselves. This is made clear in paragraphs 49 and 50 of the ACoP. Paragraph 50(f) states that the Client must ensure that Contractors are able to confirm that health and safety standards on site will be controlled and monitored, and welfare facilities (the schedule 2 responsibility) will be provided by the Contractor from the start of the construction phase through to handover. Paragraph 51 goes on to suggest that a good way of checking this issue is to ask the relevant member of the team to explain their arrangements for managing it. A Client's request that his CDM Co-ordinator checks the Contractor's proposed arrangements in this regard certainly falls within the CDM Co-ordinator's duties under Regulation 20(1)(a) - see paragraph 90(g) of the ACoP. However, an assessment of the management arrangements would not automatically extend to inspecting the facilities in question on site. Whether or not the Client can request this service without additional charge will depend on the terms of the CDM Co-ordinator's appointment. If the appointment is still being negotiated, the CDM Co-ordinator should obviously not agree to provide services that it does not wish to carry out and which are not strictly part of a CDM Co-ordinator's duties unless these additional duties are to be paid for. 4.0 COLLATERAL WARRANTIES 4.1 We are increasingly being asked in our Appointment documentation to provide collateral warranties to third parties in our role as CDM Coordinators. We have argued that we do not have any design duties or duties after the Health and Safety File has been handed to the Client at the end of the construction work, and as such do not have any continuing work which needs to be warranted. In these circumstances it is neither relevant nor appropriate to give warranties to funders, tenants, purchasers or others. We have argued that the CDM Regulations impose the penalty of criminal prosecution and a fine, in the event of a breach, and that the Regulations specifically exclude civil liability and consequently by giving warranties in these circumstances we are unnecessarily increasing our liability. However it is not always possible to persuade the Client / Client s solicitor that it is not necessary to give these warranties. ANSWER: Any professional person can be asked to provide a collateral warranty to a third party, even if they are not carrying out any design duties. It is irrelevant that there are no more duties for a CDM co-ordinator after the File has been handed to the Client. For instance, errors in the compilation of the File could lead to personal injury at a later date for which a tenant or purchaser might be held liable. Although this is not particularly likely, if that situation happened they would want to have a right to sue the CDM co-ordinator if appropriate. This would be a separate remedy from a potential HSE prosecution. The CDM Regulations exclude civil liability in part, but only in relation to a breach of statutory duty, and not in relation to civil claims generally.

5 practice note 5/ STATUTORY UNDERTAKERS 5.1 Some of our major water plc Clients often place orders with statutory undertakers to get diversions of their apparatus to accommodate the buildability of a major Notifiable scheme. We are aware that these Clients do not always appoint the statutory undertakers as Principal Contractors and ensure via the CDM-C that the works are CDM compliant. It appears this is a major area of non-compliance. ANSWER: Construction works by statutory undertakers are not exempt from the CDM Regulations. Whether a Principal Contractor (PC) and a CDM Co-ordinator (CDM-C) need to be appointed depends on whether the works by the statutory undertaker are: (a) not Notifiable; (b) Notifiable in themselves; or (c) form part of a larger Notifiable project. For works falling into (b) or (c), a PC and a CDM-C must be appointed. Deciding whether works are separate from the larger project and fall into (a) is a matter for judgment in each case. If, for example, a water company commissioned a statutory undertaker to do Non-notifiable works significantly in advance of the major project, so that the Non-notifiable works could best be considered as a separate project for health and safety purposes, there would not be a need for a PC and a CDM-C. By contrast, if the major project is to commence shortly after the statutory undertaker's works are to be completed, it is more likely that the project should be taken as a whole and both a PC and CDM-C appointed before the statutory undertaker begins work. The water company and the Contractor will still have duties under CDM 2007 even if the works are Non-notifiable and form a separate project on their own. 6.0 TERMINATION 6.1 What is the position of the CDM-C if the Client / Principal Contractor goes into a voluntary agreement without paying outstanding fees? I have three sites all with the same developer, in various states of completion, where the Contractor / Developer / Client has informed us he has entered into a voluntary agreement and cannot pay our fees, or anyone else s for that matter. I am concerned about our legal standing with regard to notifications to the HSE, H&S File information, site safety and security, etc. ANSWER: The first issue to consider is whether your appointment allows you to terminate your appointment as the CDM Co-ordinator. The APS FoA 2007, for example, allows termination on reasonable notice, which in circumstances where the Client has entered into a voluntary arrangement with its creditors and has told you that it will not be able to pay your fees, will be more or less immediate. Your appointment may also allow you to terminate if the Client suffers an "event of insolvency". If you choose to terminate your appointment, it is vital that you follow the contractual procedure precisely to avoid the possibility of being sued by the Client for breaching your contract by failing to perform your services. In addition, it will be necessary for you to protect your position with the HSE by notifying them that you are no longer the CDM-C for the projects. To do this, you will need to send them an updated Form F10. As the F10 requires you to certify that you have explained the Client's duties to it you must, before or at the time of terminating your appointment, explain that as you are no longer going to be acting as the CDM-C and you have not been informed of another CDM-C being appointed, the Client will have all the duties of a CDM-C under regulation 14 of the 2007 Regulations. You should attach a copy of the F10 that you intend to send and inform the Client that you will be sending this to the HSE. With regard to the safety of the sites themselves, you may wish to draw the Client's attention to your concerns at the time of terminating your appointment, but you do not have any responsibility under CDM 2007 for the safety of the site. It is the responsibility of whoever has possession of the site to ensure that it is safe in accordance with the Health and Safety at Work etc Act If you are concerned about an imminent danger, you could inform the HSE (this can be done anonymously), who may or may not act. If you think that a structure may collapse, you could also inform the Local Authority's building control department, which can exercise legal powers to ensure that a dangerous structure is made safe.

6 practice note 5/ ARCHIVING PROJECT FILES 7.1 Does APS have a view on how long job files should be kept as archives following practical completion of the project?. ANSWER: The Health and Safety File must of course be kept available by the Client for inspection by anyone who needs the information and particularly for anyone carrying out future maintenance / construction work. With regard to other documents accumulated during the course of the project, it is sensible to retain these for the duration of the relevant limitation period, which is either 6, 10 or 12 years, depending on whether the contract was executed under hand, as a deed, or in Scotland. It is also relevant to remember that in the case of a prosecution by the HSE, there is no limitation period and a claim could be brought at any time until the structure in question has been demolished. The type of documents to be retained are those which might be needed if a claim was ever brought against you. This is therefore likely to include correspondence, risk assessments, minutes of meetings discussing design issues, drawings of at least the more problematic parts of the design, especially early versions of drawings. You will of course wish to keep a copy of your appointment and any associated correspondence with the Client. s and their attachments should also be archived in the same way as paper documents, and treated as having the same importance. You should however make sure that the archived material can be fully accessed at a later date which may mean also archiving equipment and software unless the data has been archived in future-proof formats. The APS Guide to the Management of CDM Coordination also suggests that it may be wise to ensure that you have access, at a later date, to the full content of any Health and Safety File that you may have produced as information relating to management of risks may not be available from the Client at a later date in the event of a prosecution or civil action. Such information, or notes in the Health and Safety File relating to its absence at handover, may be essential to your defence. TO MEET THE REQUIREMENTS OF THE DDA THIS PRACTICE NOTE CAN BE ACCESSED IN ALTERNATIVE FORMATS BY CONTACTING APS. Copyright The ownership of copyright of this material is asserted by the Association for Project Safety Ltd. Any infringements of copyright may be actionable by the Association. This Practice Note has been prepared to provide general advice. APS does not offer this document as legal advice for any particular situation, as each project will be different. If you need advice on the interpretation of the regulations as they apply to a specific situation you should take advice from a suitably qualified person. Association for Project Safety Stanhope House 12 Stanhope Place Edinburgh EH12 5HH T F E info@aps.org.uk