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PRINCIPAL DESIGNERS IN THE PROSECUTION FIRING LINE

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HSE recently published its Business Plan for 2019/20 (see http://www.hse.gov.uk/aboutus/strategiesandplans/businessplans/plan1920.pdf).  In this plan HSE announced that its construction sector inspections will focus on duty holders providing Principal Designer (PD) services.  

The role of the PD was introduced by the Construction (Design and Management) Regulations 2015 (CDM 2015), replacing the CDM- Co-ordinator under CDM 2007.  HSE’s enforcement database shows that very few PDs (or even designers) have been the subject of enforcement action.  However this looks set to change.


What is the role of a PD?

The PD is appointed, in writing, by the client of a construction project involving more than one contractor. A PD is required to:

  • Plan, manage, monitor and coordinate health and safety in the pre-construction phase which includes identifying, eliminating or controlling foreseeable risks and ensuring designers carry out their duties;           

  • Prepare and provide  relevant information to other  duty holders; and          

  • Liaise with the principal contractor (PC) to help in the planning, management, monitoring and coordination of the construction phase.

Who is a designer?

Before considering who can be a PD, it is necessary to consider who can be a designer. A wide definition of ‘designer’ is given in the Regulations. A designer is any person who in the course or furtherance of a business prepares or modifies a design or arranges for, or instructs, any person under their control to prepare or modify a design.  

HSE’s guidance to CDM 2015, ‘Managing health and safety in construction’ (L153), says:

 

“The term ‘design’ includes drawings, design details, specifications, bills of quantity and calculations prepared for the purpose of a design. Designers include architects, architectural technologists, consulting engineers, quantity surveyors, interior designers, temporary work engineers, chartered surveyors, technicians or anyone who specifies or alters a design. They can include others if they carry out design work, such as principal contractors, and specialist contractors, eg an engineering contractor providing design, procurement and construction management services. Where commercial clients become actively involved in designing in relation to their project, they may also be considered to be designers.”  


Who can be a PD?

A PD can be an individual or an organisation with the right mix of skills, knowledge and experience, and, if an organisation, the organisational capability, necessary to carry out all the functions and responsibilities of a PD for a construction project. L153 says that organisational capability means:

 

“…………. the policies and systems an organisation has in place to set acceptable health and safety standards which comply with the law, and the resources and people to ensure the standards are delivered.”

 

Thus the PD requires a technical knowledge of the construction industry relevant to the project and the understanding and skills to manage and co-ordinate the pre-construction phase, including any design work carried out after construction begins. L153 states that the PD has an important role in influencing how the risks to health and safety should be managed and points out that:


“Decisions about the design taken during the pre-construction phase can have a significant effect on whether the project is delivered in a way that secures health and safety.”

 

HSE has expressed the view that the PD role was born out of necessity and that the role of the CDM-Co-ordinator, usually undertaken by an individual, was not working.  HSE has encouraged the role to be taken on by organisations, rather than individuals, to mirror the PC which is usually an organisation.  HSE’s expectation is that the PD should strengthen design risk management and co-operation in the project and ensure the flow of information. 

The PD does not have to be a designer on the project.  But does the PD have to be an active designer?

Simon Longbottom, Head of Construction Policy at HSE, in a presentation to the Association of Project Safety (APS) in September 2016 acknowledged that the definition of designer is “wide-ranging”.  He accepted that, in the early days of the Regulations, there would be use of non-active designers that were ex-CDM-Co-ordinators for the PD role.  However, Mr Longbottom hoped that in time active designers, with some support, would take on the role of the PD, eventually arriving at a time when lead designers automatically take on the role with no support.


The PD role in practice

CDM 2015’s definition of ‘construction work’ is very wide and includes:

 

“the, alteration, conversion, fitting out, commissioning, renovation, repair, upkeep, redecoration or other maintenance……, decommissioning, demolition or dismantling of a structure”

 

It is not uncommon for a commercial client to engage a contractor to carry out what it views as small scale work (eg minor repairs to a building) and for that contractor to then subcontract all or part of the work.  The consequence of this is that if the client fails to appoint a PD, then the client unwittingly takes on this role with all its responsibilities.

Anecdotal evidence suggests that there is a long way to go before lead designers automatically take on the PD role and that many organisations and individuals that were previously CDM-Co-ordinators are still being appointed to the role. Further that architects and designers are approaching ex-CDM-Co-ordinators to take on the PD role after designs have been completed, which in turn has an impact on the performance of that role.

Fisher Scoggins Waters are a London based law firm who specialise in construction, manufacturing and engineering matters and have represented principal designers subject to HSE investigation. If you require legal advice in relation to CDM 2015 or HSE investigation, please phone us on 0207 993 6960. 

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