28 May 2015
John Toms, director of asbestos, IOM Consulting, provides insight into companies' obligations specific to asbestos and CDM 2015.
On 6 April 2015, CDM 2015 came into force. Of course, the construction industry and the professions associated with it had been discussing CDM 2015 for some time.
This revision of the Construction (Design and Management) Regulations will bring many of the smaller operational and maintenance projects within its scope for the first time, and place new obligations on clients and facilities managers throughout the UK.
It is also an amendment to what would generally be considered as 'construction work' and facilities management works are specifically included. Consequently, it will be incumbent on those who procure such works to be familiar with their new obligations.
CDM 2015 makes the client, namely an organisation or individual for whom a construction project is carried out, accountable for the impact of their decisions on an approach to health, safety and welfare on the project. CDM 2015 also introduces strict liability on the client on a number of areas, in particular for the performance of their appointed duty holders. Strict liability is a legal term that relates to the obligations set out in the Regulations. No doubt the legal profession is delighted with the additional work that could flow from this, however this could also lead to clients being investigated by the HSE where Fee For Intervention has been raised against the contractor.
The principal designer and principal contractor must now be appointed by the client and the client must ensure that the principal contractor prepares a Construction Phase Plan. This document sets out how the work will be managed safely. On completion, the client will be provided with a health and safety plan giving safety information on managing the work.
These responsibilities will clearly impose additional work on both designers and contractors who will no doubt add the costs on and increase tender prices. Perhaps this a small price to pay for additional safety, taking into account that asbestos related cancers still account for the majority of construction related deaths in the UK, typically amounting to around almost 5000 per annum.
It is evident that property owners carrying out maintenance work on their own properties will also face additional costs from designers and contractors for the added work they now have to undertake as well as the new compliance risks as a result of the introduction of these new duties, and the strict liabilities for the performance of these duty holders.
It could be argued that the new Regulations will struggle to achieve the HSE’s stated aim of increased efficiency and reduced costs, bearing in mind the broadening of application CDM 2015 to include minor works simply because they are being undertaken by more than one contractor. Ultimately, asbestos surveys, and the requirement to undertake them has not changed. Intrusive works to any property constructed before the year 2000 should be preceded by a planned, properly scoped and scheduled asbestos Refurbishment Survey.
It is categorically the case that the only risk assessment one can possibly undertake in relation to asbestos is to undertake a Refurbishment Survey of a type which will, under controlled conditions, reveal any potential asbestos materials which might be in the vicinity of the area where works are planned.
A visual inspection, or reference to a Management Survey, is completely insufficient simply because the Management Survey is not intrusive and has not been undertaken to account for any changes to the building (even of a non-structural nature).
Undoubtedly, CDM 2015 will have implications for a large range of individuals and organisations throughout the UK, however from the perspective of asbestos companies it is very much business as usual; asbestos legislation has not changed.
We would be delighted to speak with any client who is unclear of their obligations specific to asbestos and CDM 2015.