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Should the domestic client take on their own CDM duties


7th April 2018

Christian McCale, Senior consultant at Lucion Consulting, asks whether it is right that domestic clients should be able to absolve themselves completely of all CDM responsibilities

One of the drivers for the revisions to the Construction (Design and Management) Regulations in 2015, was to update our regulations in line with the EU Directive for Temporary or Mobile Construction Sites.  However, we gave the domestic Client a ‘get out of jail free’ card which transferred domestic Client duties by default to the Contractor on the project.

So three years after the introduction of CDM, why do I regularly receive requests from architects for clarification on CDM responsibilities for domestic construction works? In particular, it seems that in protecting the domestic client against their involvement in construction matters in which they have no knowledge or experience, the outcome has simply served to muddy the waters of responsibility.

 

Domestic projects

Domestic projects are regarded as those construction works that are required by someone on their own home. This includes new build projects that are commissioned by the intended resident of the property. If the work is to be carried out on behalf of a business, for example for a property company, landlord or insurance company as part of the settlement of a claim, then this would not be considered a domestic project and normal commercial client CDM rules would apply.

However, on domestic works projects the starting point is invariably with a designer, architect or even a kitchen planner. In practice, the first designer and builder through the door are usually the leads and therefore take on the Principal roles, with the Principal Designer having a duty to assist in collating pre-construction information.  However, in typical domestic refurbishments, collating pre-construction information is often the first fall-down under CDM.

For example, I have yet to see a mainstream DIY retailer that sits customers down in store to design a new kitchen installation ever mention CDM, let alone offer other advice on service entry points and the need for an asbestos survey for a property if it pre-dates 2000.

The main reason for this situation is invariably linked to cost. The designer may legitimately advise of additional fees required as part of their Principal Designer role, but with the customer holding the purse strings (and without having any CDM duties), they often don’t see why they should incur the additional expense.  The domestic client does not have any duty to manage asbestos, so procuring a refurbishment and demolition survey is another expense … an expense that is necessary before a builder commences any work.

 

Contractors

Then there are the Contractors.  Clearly many responsible builders will ensure that they comply with CDM and apply the principles it brings, but there are others who may not be so diligent. Unfortunately, with this latter group, to whom Client duties will have been passed, when the circumstances demand they will invariably opt for the quick (and low cost) fix wherever they can, mainly due to being unaware of the regulations.

In practice, for example, this could mean choosing the roofer who has a ladder and can pop up quickly to fix some dropped slates and missing ridge tiles ahead of the roofing company who has correctly budgeted for a safe scaffold access and put the required documentation in place to undertake the works.

A large part of the problem is that these situations are not being policed by the HSE and opportunities exist for domestic works to remain under the CDM radar. In reality, even if a low-level accident were to occur on a domestic project, many self-employed contractors would be unlikely to submit a RIDDOR report to the HSE. So, only when a serious injury to an employee occurs would the HSE become aware, and with no documentation for H&S and CDM in place, the director and site manager of the Contractor are sure to expect an investigation and likely prosecution.

 

Domestic customers

The situation becomes even more problematic with domestic customers naturally wanting to check on the progress of their project – after all, it is costing them a great deal of money and they want it to be right.  But this can lead to a crossing of the line and, strictly speaking, the property owner becoming the lead designer when new instructions or changes are made on what they feel is required, what materials should be used and how works should be done.

I have even heard stories of clients visiting their new build site at the weekend, taking the family for an update, removing hoarding to gain access and – on one extreme occasion – having a lovely picnic on the upper lift of the scaffolding.

In such situations, does the Client know the consequences of such actions?  If an accident should occur, it is the builder that would be liable.  If it was a serious accident and the HSE becomes involved, the Contractor could face fees for intervention following any notices placed on them, as well as prosecutions and fines, with the consequent financial, legal and reputational damage. However, as all contractors will testify, it is difficult to tell a paying customer that they can’t or shouldn’t visit a building site whenever they’d like to.

Far too often it therefore appears that the domestic client steps into the realms of the designer and contractor.  If they are appointing each and every sub-contractor to manage cost and programme, they are effectively acting as the Principal Contractor, and in which case, surely they should take on their own Client duties?  Likewise, they can and do dictate design modifications and could therefore also be regarded as the Principal Designer. Unfortunately, three years down the line, the evening TV programmes that encourage everyone to take up the dream of developing your own housing project never mention CDM and how it could affect these grand designs.

In summary, I work with a number of architects who are increasingly taking the view that domestic projects have become more problematic than they are worth.  They have come to this conclusion because domestic clients, understandably, want to keep a tight grip on the costs of their dream projects, but do not have any CDM understanding that their demands may involve.

Clearly better communications from the outset between the designer and contractor with the domestic customer would help, but it is my belief that there are certain issues in the CDM Regulations on domestic works that can only be addressed by the householder becoming responsible.

Although I accept this is unlikely to change, at the very least a broader public information campaign on CDM 2015 for domestic projects would help to boost understanding among householders and help those professional designers and contractors trying to work within the regulations.

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