Jeremy Harris

As far as I can see, a business cannot be a domestic client. Someone who sets up a business to build themselves their own home has become an entity to whom CDM applies, as has been the case since it was introduced in 1995. Such a business would automatically have to assume the role of client, in CDM-speak, and could well have other roles too, perhaps principal designer if they designed the house themselves, for example. When the topic of setting up a business solely to build a "principal private residence" has been debated in the past, the general consensus seems to have been that it isn't worth it. For example, a self builder who is not running a business to build their home, can take advantage of the HMRC VAT reclaim scheme. I'm not at all sure how someone that's set up a small business that's under the VAT registration threshold, can get the VAT back on all the materials. When using VAT registered contractors then the situation is similar for both a domestic self builder and a business self builder, in that a VAT registered contractor should zero rate services and goods that are a part of that service, I think. I know that's how it works for a non-business self builder, but I'm not sure of the system that applies to either a VAT registered or a non-VAT registered business set up to build a single house.

But does it make sense for a self builder, with no previous experience of being self employed, to learn how to set up a company, solely to build their own house? As I understand it (feel free to correct me if I'm mistaken) the HMRC VAT reclaim scheme only applies to self builders who are not trading, either as sole traders, a limited company or whatever, for the sole purpose of building a principal private residence. I know the topic has been discussed here, and on Ebuild, before, with the pros and cons of either setting up a business solely to build a home, versus self building as an individual that's not a trading entity, and I seem to recall that the general consensus has always been that the disadvantages of setting up a business in order to build your own home outweighed any advantages. The situation may well be different for someone that's already running their own business, I'm sure. I was a bit unclear in that I was referring to the case where someone set up a business solely to build their own home and then dissolved it afterwards. Temp is really the expert on this, as I seem to recall him spelling out some of the pitfalls that you could fall into if setting up a business to just build your own home. I can't recall the detail now, but I believe there were some concerns over how VAT would be managed, amongst other things.

No. The issue is over the use of the word "appoint". It has a clear legal definition, but is very often used more loosely to refer to "contract with". In the case of the contractual relationship between a domestic client and an architect, then the word "appoint" has come to mean "contract with". However, in terms of CDM, the term "appoint" effectively means "place a responsibility upon, without there necessarily being a consideration exchanged".

No. A homeowner can contract with an architect, under normal contract law. i.e., the architect makes an offer to the homeowner to provide specified services, the homeowner accepts that offer, and the architect delivers those services in return for the agreed remuneration. The homeowner has no authority to appoint the architect as, say, principal designer under CDM 2015, as the homeowner is not a client, in terms of that legislation, but a domestic client. The architect can assume the role of principal designer if he/she feels the need to in order to comply with CDM 2015. The legal obligation with regard to the assumption of this role does not rest with the homeowner (the domestic client) but with the architect, who may feel required to assume that role in order to comply with the relevant legislation.

As above, I use professional diver neoprene knee protectors, left over from when I used to go caving. They look like this: https://www.wetsuitoutlet.co.uk/knee-pads-c-24_370_409.html

Not in terms of being able to appoint an individual to a legally-binding role it doesn't! There's some really fundamental misunderstanding here about the differing relationships between businesses working together to deliver a project, and a private individual contracting with one or more businesses to supply goods or services. Different laws apply, for a start, as the private individual is a consumer, in law, and has the enhanced level of protection that applies when contracting for goods or services. If we take the framework within which CDM was designed to apply, then the client would be a business (and I have experience of being a client in a modest construction project) and as such would have a contractual agreement with one or more businesses that were delivering the project. Within that framework the client can indeed appoint people to assume particular roles, within the overarching framework of the contract between the client and the suppliers. With a self-builder, there is no overarching contractual framework, and furthermore, a self builder cannot be a client, and so has no authority to appoint anyone. All that a self builder can be is a domestic client, who places contracts with businesses, and those businesses have a duty to deliver goods or services in accordance with all relevant legislation. This may well mean that some have to assume the role of principal designer, principle contractor, etc, but it is not the domestic client who is making these appointments, it is the businesses themselves doing so in order to comply with legislation. As has already been mentioned, there may well be many principal contractors during a self build, as each contracted company plays it's part in delivering the contracted goods or services to the domestic client.

I'm not familiar with Scots Law, but here you cannot be an employer if you contract for goods or services using a standard form of contract. If you were to hire an individual, as an employee, then you become a business engaged in construction, and not a self builder. This then means you lose all the privileges granted to self builders (VAT reclaim, duties, etc)

The RIBA document is not law. In law, to appoint someone you must have the authority to do so. A domestic client has no legal authority to do this. I could contract with someone to undertake a service on my behalf, but that places a different set of responsibilities (in law) on both parties. This is really contract law 101, but a contract requires an offer, the acceptance of that offer and the exchange of a consideration, in order to be valid in law (and I'm only really familiar with contract law in England and Wales, Scotland and Northern Ireland may be different). The offer made by a contractor will be specific, and include the supply of goods or services to a specification. The acceptance of that offer will be on the basis of that specification. The exchange of a consideration is the provision of the goods or services to the customer and the payment to the contractor by the customer. If a self-builder contracts with a business to provide a service, say the design of a house, then the offer is for the provision of the agreed design service, including all legal obligations. The self-builder has no authority to appoint a business to undertake a legal obligation, but can only accept an offer made as a part of a contract.

At home I have a copy of the PDF from our DNO, that covered the trench section detail for all the services, with differing profiles for trenches under roads or public paths to those under gardens. They vary slightly from one region to another, though, so it's worth getting the definitive one for your region.

I've been told that the loud clicks are not symptomatic of any problem; my left knee makes very loud noises when it's flexed, loud enough to cause concern to anyone that doesn't know about it. The clicks are apparently caused by tendons crossing over each other as they pull tight, and don't seem to cause any problems. My knee has been doing this for 40 years now, and the noise never seems to get worse. Similarly to you, the same knee periodically swells and gets extremely hot, often when there is a bit of rain after a period of dry weather (it started swelling up again yesterday, and as I sit here it's very hot). Years ago it worried me, but doctors never seem bothered by it and have pretty much said it's just one of those things that will flare up and go down on its own, which it does. I avoid ibuprofen, as after years of taking the stuff I now find it upsets my digestion quite badly. Diclofenac ointment works well, especially if you adopt the rather unusual strategy of applying it copiously last thing at night, rubbing it in, then wrapping a bit of cling film around your knee to sort of seal it in. It makes my (paediatric nurse) wife chuckle a bit, but I'm convinced it fixes it. Whether the knee gets better from this treatment, or whether it gets better just because I believe in this treatment, I have no idea; I just know it works for me!

The key is the use of the word "appoint". A domestic client (i.e. a self builder, whether doing the work themselves or contracting with others) cannot appoint anyone, they do not have the authority to do so. They can, and most do, contract with a wide range of businesses, and by doing so they should have a reasonable expectation that those businesses are aware of the law and assume due diligence when it comes to ensuring compliance with it, in so far as is reasonably practical (the underpinning principle of the H&S@WA 1974, that empowers and enables CDM 2015). Self builders are not employers, and are not clients (as defined in CDM 2015) and they are not employees of a building related business. They are usually ordinary members of the public, not engaged in building a home as a part of a business or related undertaking, but as a personal endeavour, outwith the realms of business. As such, business-focussed and related legislation does not apply to them, and CDM 2015 does state this, although, as I wrote much earlier in this thread, the wording is nowhere near as clear as I believe it could be. The normal law that makes each and every one of us responsible for our own actions, and inactions, applies as much to self builders as it does to car drivers, cyclists or pedestrians. As private citizens we all have a limited duty of care to our fellows, whether they be going about their own lawful business, or whether they are engaged in unlawful activity. It is this duty of care that means that a self builder has to take reasonable measures to ensure that their land, and everything on it, is as safe as they can reasonably make it, bearing in mind that "reasonable" will be the standard "man on the Clapham omnibus" test in court, and as such there will be a much lower level of expectation than there would be, for example, from someone employed as a house builder.

It is not in the CDM Regulations, it is a principal in law that applies to a wide range of circumstances. I quoted earlier a case where a man found himself charged with double manslaughter because he freely offered to help a friend, and by doing so he assumed a greater duty of care in law than he would if he had just walked past without offering to help. A domestic client cannot "appoint" anyone. They do not have the authority to do that. They can contract with someone to provide a service, or supply goods, but that has a different meaning in law and carries a lesser responsibility for the domestic client. As an aside, you're the expert in this, selling that expertise in order to earn a living, so why is it that others here are having to give advice on laws that you profess to be a subject matter expert in?

No. By doing so they cease to be considered as a domestic client, as they have willingly absolved themselves of that status. Contracting with (not appointing, there is a legal difference) an architect of SE is a straightforward domestic client to contractor relationship, where the domestic client does not bear any CDM-related responsibility.

If a self builder was to take such a rash and foolhardy action, then they would be accepting that they were not a domestic client, with all the added responsibility that brings with it. This is all a lot of hot air about something that has no direct application to self builders at all, other than that they should be aware of people trying to make it seem as if they should accept some responsibilities under legislation that is intended for, and aimed at, the construction industry. There is a long standing legal requirement that everyone has a duty of care to ensure that their land and home is as safe as is reasonably practical. This applies to self builders who are required to make sure that their sites are as safe as THEY can reasonably make them, accepting that they may be limited in their ability to do this, due to the fact that they are amateurs and so domestic clients for a range of businesses that will be working for them under contract. This duty of care is not something that falls under the CDM regulations, and predates them by decades.

I, once again, have to say that no one should seek to take a responsibility that they are not obliged to accept and for which they are unqualified, in law, to undertake. Advising self-builders to follow the spirit of CDM 2015 is exceedingly foolhardy. Doing so could be enough to convince a court that an enhanced duty of care applies, because the domestic client has willingly put themselves forward for a responsibility that they should not have accepted. There is no such concept as "moral high ground" in law. Law is always, without exception, strictly interpreted from the wording of the applicable legislation and any applicable modifying case law. If self-builder were to take the extremely foolhardy step of appointing anyone into any CDM role then they would be creating a liability for themselves. There is no way on earth I would be so very stupid as to even think of doing this; I've seen what happens to people's lives when things go wrong after they've ignored the law but tried to do the "best thing". It is not pleasant. Once more, it is important to note, that Regulation 5(3) and (4) of CDM 2015 DOES NOT APPLY TO A SELF BUILDER. A self builder cannot, and must not, appoint either a Principal Contractor or a Principal Designer. To do so would be extremely foolhardy, as it could be construed that the self builder was intending that they should be treated as a business or other undertaking, with all of the responsibilities and liabilities that position carries. Finally, ignoring CDM 2015, there are other requirements in law that DO apply to a self builder, in a similar way that they apply to any other member of the public, and these provide perfectly adequate guidance as to what needs to be done to ensure that a self-build site is adequately controlled and made safe for THIRD PARTIES (i.e. not including workers or contractors).

My advice, as someone who has regularly appeared in court giving evidence in cases involving liability, is to never voluntarily accept responsibility for anything, unless you are 100% sure that you have no alternative. An example from personal experience: An acquaintance offered to help a pilot friend carry out a simple, authorised, factory safety modification to the pilot's own aircraft. There was an accident, both the pilot and the passenger were killed. Because the chap that had helped had freely offered assistance with the modification, and because there was a possibility that the incorrect embodiment of the modification could have been a contributory factor in the accident, the chap that helped, out of goodwill, was charged with double manslaughter, lost all his savings and equity in his house in paying for his defence, had a nervous breakdown and was eventually found unfit to plead. There was no evidence that the work by this chap had caused the accident. It was more likely that the pilot was the one that made an error, or series of errors, but he was dead. The only sensible thing to do is to refuse to accept any responsibility, or act in any way that could be construed as accepting a role, in this case under CDM 2015. Leave the ball very, very, firmly in the court of those you employ. Remember you are a domestic client as a self-builder, and strongly resist any attempt to convince you otherwise. Contractors may well be unwilling to accept their responsibilities, and may not be familiar with the fact that domestic clients cannot, and must not, perform any action, even the delegation of roles, under CDM 2015, without opening themselves up to an argument that they have accepted a role that has a greater duty of care than would be expected from a domestic client.

You also wrote this: This is not the case. If you are a self-builder then, by definition, you are a domestic client, as you are not in business. The law is clear, if you are not in business then you cannot be the client and therefore you are not required to appoint a principal designer, in fact I think you would be in danger of taking on an inappropriate degree of responsibility if you were to do such a thing, in terms of personal liability. For clarity, Regulation 6(2)(a) makes things clear if a domestic client does the sensible thing and refuses to make appointments, because of the potential personal liability they might face if they did: "(2) If a domestic client fails to make the appointments required by regulation 5— (a) the designer in control of the pre-construction phase of the project is the principal designer; (b) the contractor in control of the construction phase of the project is the principal contractor." Also, bear in mind that a domestic client cannot be the designer in control of the pre-construction phase, as he/she is not a business or other undertaking, as already defined earlier in this thread.

No it is not. The law is clear, and a domestic client CANNOT assume responsibilities under CDM 2015!!! The key here is that a self builder is NOT a business, and is not an "undertaking" that could have similar responsibilities to a business. This defines a self builder as a domestic client, and although the regulations are not that well worded, there is a clear set of references and cross references that define what a domestic client can and cannot be responsible for.

As (I hope) a final tidy up, the issue of the responsibilities of a domestic client have been raised in this thread, and this is what the legislation has to say, in full: "Application to domestic clients 7.—(1) Where the client is a domestic client the duties in regulations 4(1) to (7) and 6 must be carried out by— (a) the contractor for a project where there is only one contractor; (b) the principal contractor for a project where there is more than one contractor; or (c) the principal designer where there is a written agreement that the principal designer will fulfil those duties. (2) If a domestic client fails to make the appointments required by regulation 5— (a) the designer in control of the pre-construction phase of the project is the principal designer; (b) the contractor in control of the construction phase of the project is the principal contractor. (3) Regulation 5(3) and (4) does not apply to a domestic client." And here are the specific regulations referred to in the above section, first regulations 4(1) to (7) and regulation 6: "Client duties in relation to managing projects 4.—(1) A client must make suitable arrangements for managing a project, including the allocation of sufficient time and other resources. (2) Arrangements are suitable if they ensure that— (a) the construction work can be carried out, so far as is reasonably practicable, without risks to the health or safety of any person affected by the project; and (b) the facilities required by Schedule 2 are provided in respect of any person carrying out construction work. (3) A client must ensure that these arrangements are maintained and reviewed throughout the project. (4) A client must provide pre-construction information as soon as is practicable to every designer and contractor appointed, or being considered for appointment, to the project. (5) A client must ensure that— (a) before the construction phase begins, a construction phase plan is drawn up by the contractor if there is only one contractor, or by the principal contractor; and (b) the principal designer prepares a health and safety file for the project, which— (i) complies with the requirements of regulation 12(5); (ii) is revised from time to time as appropriate to incorporate any relevant new information; and (iii) is kept available for inspection by any person who may need it to comply with any relevant legal requirements. (6) A client must take reasonable steps to ensure that— (a) the principal designer complies with any other principal designer duties in regulations 11 and 12; and (b) the principal contractor complies with any other principal contractor duties in regulations 12 to 14. (7) If a client disposes of the client’s interest in the structure, the client complies with the duty in paragraph (5)(b)(iii) by providing the health and safety file to the person who acquires the client’s interest in the structure and ensuring that that person is aware of the nature and purpose of the file. " "Notification 6.—(1) A project is notifiable if the construction work on a construction site is scheduled to— (a) last longer than 30 working days and have more than 20 workers working simultaneously at any point in the project; or (b) exceed 500 person days. (2) Where a project is notifiable, the client must give notice in writing to the Executive as soon as is practicable before the construction phase begins. (3) The notice must— (a) contain the particulars specified in Schedule 1; (b) be clearly displayed in the construction site office in a comprehensible form where it can be read by any worker engaged in the construction work; and (c) if necessary, be periodically updated. (4) Where a project includes construction work of a description for which the Office of Rail Regulation is the enforcing authority by virtue of regulation 3 of the Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006(a), the client must give notice to the Office of Rail Regulation instead of the Executive. (5) Where a project includes construction work on premises which are or are on— (a) a GB nuclear site (within the meaning given in section 68 of the Energy Act 2013(b)); (b) an authorised defence site (within the meaning given in regulation 2(1) of the Health and Safety (Enforcing Authority) Regulations 1998(c)); or (c) a new nuclear build site (within the meaning given in regulation 2A of those Regulations), the client must give notice to the Office for Nuclear Regulation instead of the Executive." So, for all those regulations above, under "4 Client duties in relation to managing projects" and "6 Notification" the responsibility does not lie with the domestic client (i.e. a self-builder) but lies instead with: (a) the contractor for a project where there is only one contractor; (b) the principal contractor for a project where there is more than one contractor; or (c) the principal designer where there is a written agreement that the principal designer will fulfil those duties. And, if: (2) If a domestic client fails to make the appointments required by regulation 5— (a) the designer in control of the pre-construction phase of the project is the principal designer; (b) the contractor in control of the construction phase of the project is the principal contractor. Regulation 5(3) and (4), that does not apply to a domestic client is: "Appointment of the principal designer and the principal contractor 5. ................... (3) If the client fails to appoint a principal designer, the client must fulfil the duties of the principal designer in regulation 11 and 12. (4) If the client fails to appoint a principal contractor, the client must fulfil the duties of the principal contractor in regulations 12 to 14." So it is very clear from this that a domestic client cannot be either the principal designer or the principal contractor. In summary, a domestic client has NO responsibilities under CDM 2015, nor can a domestic client assume any!

Many thanks Peter. I'd been racking my brains as to where I'd seen the definition for an undertaking, knew it was somewhere in the Statute Book but not where!

Rain has put a hold on me roofing the shed for the past hour, so I've pulled up the SI's to have a look. First off, here is a direct link to The Construction (Design and Management) Regulations 2015 (CDM 2015): http://www.legislation.gov.uk/uksi/2015/51/pdfs/uksi_20150051_en.pdf Before delving into the detail of these, we need to look at the empowering legislation, which is referenced in the heading to the above Regulations, and is contained within the Health and Safety at Work Act 1974 (H&S@WA 1974). Sections 15, 80 and Schedule 3 of the H&S@WA are effectively the empowering and enabling legislation that gives the S of S the authority to make the CDM 2015 Regulations. Schedule 3 is key, as that refers very specifically to requirements placed on employers and employees related to the subject-matter of health and safety regulation. Note that, because the H&S@WA 1974 applies to employers and employees, in general it does not apply to customers or clients that contract for the supply of goods or services. As such, it is arguable as to whether the S of S has the lawful authority to make legislation (the CDM 2015 Regs) apply to a group of people that are outside the scope of the empowering and enabling legislation for the Act. It seems likely that a court would reject a case brought under CDM 2015 against a domestic client on that basis alone. It's also worth noting that domestic clients and customers were outside the scope of consultation for CDM 2015, as stated in this paragraph at the head of the document: "Before submitting those proposals to the Secretary of State, the Executive consulted the bodies that appeared to it to be appropriate as required by section 50(3) of the 1974 Act(c). It appears to the Secretary of State that the modifications to the instruments marked with an asterisk in the table in Schedule 5 are expedient for the purposes of section 80(1) of the 1974 Act. It also appears to the Secretary of State not to be appropriate to consult bodies in respect of those modifications for the purposes of section 80(4)(d) of the 1974 Act." Again, it could be argued that not consulting with people like self-builders was an omission by the S of S of a key target group, IF the intention was to make them liable under CDM 2015. The next section of CDM 2015 is key. It contains the interpretations that define the roles and responsibilities which all other parts of the Act use. The key interpretations, with regard to a self-build client are these: “the 1974 Act” means the Health and Safety at Work etc. Act 1974; “the 2007 Regulations” means the Construction (Design and Management) Regulations 2007(a); “the Management Regulations” means the Management of Health and Safety at Work Regulations 1999(b); “business” means a trade, business or other undertaking (whether for profit or not); “client” means any person for whom a project is carried out; ................. “contractor” means any person (including a non-domestic client) who, in the course or furtherance of a business, carries out, manages or controls construction work; “design” includes drawings, design details, specifications and bills of quantities (including specification of articles or substances) relating to a structure, and calculations prepared for the purpose of a design; “designer” means any person (including a client, contractor or other person referred to in these Regulations) who in the course or furtherance of a business— (a) prepares or modifies a design; or (b) arranges for, or instructs, any person under their control to do so, relating to a structure, or to a product or mechanical or electrical system intended for a particular structure, and a person is deemed to prepare a design where a design is prepared by a person under their control; “domestic client” means a client for whom a project is being carried out which is not in the course or furtherance of a business of that client; I could go on to cross-reference all the relevant references between the handful of statutes that spell out all the detail, but the above highlighted interpretations are very clear in and of themselves. The fundamental point is that a self builder CANNOT undertake any of the highlighted roles under CDM 2015, because all require that they be in business. As we all know, you cannot operate as a self builder in business, as this conflicts with the concessions that are specific to self builders, primarily those surround VAT and taxation, plus the payment of duties. Note that a self-builder cannot be a contractor, or a designer, as both are tied to being in business.

We used a broker (not one with "Build" in the name") and they offered two or three options, of which the cover offered by Sennocke was the best for our needs. I can't remember the brokers name right now, but could check when I get back home later.

If I get time to dig it out again this evening I'll make an effort to summarise all the links that connect the dots to exempt domestic clients, but it will take some time as there are a lot of cross references that I need to quote to make the intent clear. Right now I have to go and get on with putting a roof on the new shed I started building yesterday, so it's finished before our new house is included in the Conservation Area!

The problem here seems to be an intention to misuse legislation that is very, very clearly intended to apply to the construction industry, by making out that it now applies to a domestic client self-builder. Whether this is a deliberate attempt to hoodwink and scare self-builders into believing that things have changed for them, and they now need to spend additional money with consultants to make themselves "safe", or whether it's just the rather poor wording in the Statutory Instrument that updated CDM2007 to CDM2015, I'm not at all sure.

This seems a circular argument to me. The very, very clear intent of government is to encourage the self-build sector. All the (EU inspired) CDM legislation up until CDM2015 has been very explicit about self-build being exempted. CDM2015 does say the same thing as it's predecessors, but in an unclear manner. However, the fact remains that when you go back to the Statutory Instrument it is apparent (if not very clear) that self build is still exempt. So, there are no changes that impact on self builders that I can see; self build remains covered by pre-existing legislation that controls HSW&E, with the same responsibilities on a self builder today as applied to me three years ago.