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HSE statement on new construction regulations fails to clarify scope, says expert

A statement issued by the Health and Safety Executive (HSE) on new construction regulations fails to clarify what work that is covered by the legislation, said health and safety law expert Sean Elson of Pinsent Masons, the law firm behind Out-Law.com. 02 Jun 2015

The Construction (Design and Management) (CDM) Regulations, which came into force on 6 April, affect all construction work taking place in the UK.

The wording of the regulations had caused concern about whether the legal obligations that they impose extend to day-to-day maintenance activities, Elson said.

"This is an area of real uncertainty. On the face of the regulations, maintenance, decoration and repair all amount to 'construction' work and as a result the requirements of CDM 2015 will need to be applied," Elson said.  

Of particular concern is whether maintaining fixed plant such as heating systems and air conditioning is also included in the statutory definition, Elson said. 

In response to concerns, the HSE has released a clarification, which said: "The definition of maintenance work has not changed. If the task in hand looks like construction work, requires construction skills and uses construction materials, it is construction work. General maintenance of fixed plant which mainly involves mechanical adjustments, replacing parts or lubrication is unlikely to be construction work".  

Elson said: "Although any attempt by the HSE to try and clarify what is or is not construction is to be welcomed, especially the limited guidance on maintaining fixed plant, this does not appear to be much help to duty holders wrestling with the application of CDM as it seems to be based on the principle that 'you’ll know it when you see it'."

"The changes to CDM were never intended to increase the scope of what is construction work and to bring in work that was previously outside this regime – in other words, if it was not construction work before 6 April then it still shouldn’t be," Elson said.

Previous advice from the HSE in an Approved Code of Practice said that in many cases that sort of maintenance would not be classed as construction but that guidance has now been withdrawn.

Further clarification or guidance may subsequently be issued as CDM 2015 beds in, Elson said.

"In the meantime, organisations looking to manage CDM 2015 should reflect on the very wide definition of what is construction in the context of delivering 'everyday' maintenance and facilities management activity," he said.

The new regulations give a greater role to 'clients', meaning anyone for whom a construction project is carried out, while the work is being carried out. Even work done on behalf of homeowners will be affected by the new rules, although most of the homeowner's 'client' role and duties will pass to a contractor once one is appointed.

The scope of 'construction work' under the regulations is wide, covering everything from major infrastructure projects like HS2 to installing a new office shower.

The regulations replace the previous CDM coordinator role with that of a 'principal designer', responsible for planning, managing and coordinating the project's pre-construction phase. A client must appoint a principal designer when a project involves more than one contractor – for example, if a plumber and an electrician are appointed to install an electric shower.

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