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While in the US Barack Obama continues to struggle to achieve reforms in immigration and healthcare, in the UK some members of the construction industry think the new construction (design and management) regulations 2015, or CDM 2015, will make fundamental, confusing and costly changes to health and safety. That’s not what the HSE says. They believe that the new regulations will streamline health and safety in practice to benefit all, particularly SMEs. Is CDM 2015 change we can believe in?

It is now common knowledge that the role of the CDM co-ordinator will be replaced. Slightly cumbersome transitional provisions mean existing CDM co-ordinators will retain certain responsibilities until 6 October. This final deadline to remove the one person who has had responsibility for health and safety does seem at odds with the objective of the legislation. Surely it would be better to leave the CDM co-ordinator in place until the end of the project?

As the CDM co-ordinators pack their bags, cue finger pointing and vacant looks from the design team. The incoming principal designer is required to be someone who prepares or modifies a design. This design capability requirement probably excludes an employer’s agent or project manager, as well as most CDM co-ordinators. Not to mention smaller or specialised architects who have provided designs, but do not have the organisational capacity to become a principal designer. The change may represent an opportunity for architects and engineers to expand their capabilities into this area, but will health and safety really be enhanced by embedding responsibility for it in the design team, or would clients prefer to discharge their duties under CDM 2015 by relying on a tried and tested independent health and safety adviser?

If a client decides to appoint both a CDM co-ordinator (who will have no official role under CDM 2015) and a principal designer, where is the cost saving in that?

While previously the appointments of the CDM co-ordinator and principal contractor depended on whether a project was notifiable, those of the principal designer and principal contractor are now triggered on projects where there is more than one contractor, arguably a lower threshold. Practically, this is unlikely to make a difference to larger projects. But what about routine smaller maintenance contracts carried out by a contractor who uses self-employed labour?

If a client decides to appoint both a CDM co-ordinator (who will have no official role under CDM 2015) and a principal designer, where is the cost saving in that?

The threshold for notification has been raised, but only slightly. Notification is now required where there are 20 workers working simultaneously at any point in the project and the project has a duration of longer than 30 working days, or where the project has a duration in excess of 500 person days. In practical terms there is no change here as regards larger projects. However, the key point is that the obligation to notify is now on the client. Whilst in practice the client may still engage someone to carry out its responsibilities, prosecutions remain a risk which cannot be reallocated contractually.

The responsibility for the health and safety file, and its transfer from the principal designer to the principal contractor and then to the client, could certainly be clearer. Where the principal designer’s role comes to a conclusion before the end of the project, the principal designer must pass the health and safety file to the principal contractor. But what constitutes an end to the principal designer’s role? The regulations are ambiguous and building contracts and appointments will need to address this point to give clarity for the client.

The Approved Code of Practice (ACoP) will be withdrawn and replaced by guidance aimed at SMEs. So again, not a huge change except that the guidance will not have the same legal status as the ACoP. Will the parties be able to rely on it if found to be in breach? Of what practical use will it be if they cannot do so?

It appears that, overall, the obligations in CDM 2015 are not dramatically different (technical standards are largely unchanged) from the previous regime for larger organisations, who are likely to have the internal resources to absorb these changes. However, a noticeable shift in responsibility, particularly onto the client, will have a greater impact on smaller projects. This does not seem to be at all what the legislation intended. Nevertheless, the most important question remains: will this make a difference where it really counts – on site? And is there any chance of a change of heart before the regulations come into force on 6 April?

Stephanie Canham is national head of projects and construction at law firm Trowers & Hamlins