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CDM Principal Designer (Form of Appointment) The following must be read in the context that this is a legal opinion tendered solely to the person that requested legal advice. Another lawyer may of course offer a different legal opinion. However, I trust the advice goes some way to provide “comfort” in terms of the legality of using an APS Form of Appointment (FoA) on projects with domestic clients. As requested in the ‘Principal Designer Role’ topic (p9); I have obtained legal advice regarding the use of the APS FoA by domestic clients who wish to exercise their right (i.e. choice) under CDM 2015, to appoint a Principal Designer, rather than the duty falling to the designer in control of the pre-construction phase of the project. The lawyer advised: A “formal appointment” – could be anything in writing clearly stating who is being appointed in the Principal Designer role. However, it is best practice to cover the points in the FoA. There is no legal objection to tailoring the APS FoA to meet specific project requirements. It is a question of going through the FoA and agreeing what clauses should be omitted, added or changed, to suit the particular circumstances. Any changes should be signed or initialled by both parties. APS Form of Appointment (sample): http://aps.legallio.com/Documents/Agreements/83feca3a_4931_4221_8777_3d93fa1d8074.pdf

This post is summary of the Principal Designer thread. The purpose of this summary is to assist members and guests decide for themselves how CDM2015 impacts their build project. The summary is offered as is and should not be interpreted as authoritative advice. As is normal in asynchronous online discussion, the thread sometimes changes its focus a little. Where those changes occur, the content has not been summarised. Discussion of this issue is particularly relevant to us because we are a self-build forum, whose members are assumed not to be professional builders, or -in relation to building- have any technical understanding or capability beyond simple DIY . To be clear, the following assumptions are made; · A client is a Domestic Client. The distinction is central to all that follows · The Domestic Client can choose to apply for VAT relief in due course, whereas a Client cannot · The Domestic Client is not engaged, or about to be engaged, in a business related to the build (because they will then be a Client, not a Domestic Client) The thread started with a question about the role of Principal Designer. The examination of that question inevitably lead to discussion about how the role related to other key aspects of the legislation. There was some reference to the history of Health and Safety legislation, but it was pointed out that over time, the general emphasis had not changed. If you qualify for Domestic Client status, then a contractor working for you carries the main responsibility for Health and Safety. It was in the detailed examination of the term ‘responsibility’ that a good deal of discussion arose. Several members agreed that the legislation was poorly drafted for our sector of the market. And in the context of a self-build forum, where many of us will be doing things for the build on our own (DIY) as well as employing contractors, it is easy to see a rich source of confusion. For example, self-builders might be tempted to become involved in the build in a way which implies technical competence and so enhanced H+S responsibility. A strong warning was given to self-builders to avoid becoming involved in technical aspects of the build to the extent that they might be considered ‘ a responsible person’. And that includes the self-builder being trained in a relevant build subject to the extent that he or she might be assumed by the courts to have more responsibility than a Domestic Client would be expected to have. Perhaps the simplest articulation of how CDM responsibilities can be operationalised was in this post (@jamiehamy) ‘… We have only used contractors for the steel frame, lifting in floor beams, ground works/drainage and electrics - and each time I've made it clear that the contractor is responsible for operating safely and I do not dictate how they complete the activities. I don't supervise on site and most certainly do not manage their work or how they work - they have a deliverable and it is their responsibility to complete that. Where required, I offer safety equipment, ask what they need me to provide to work safely and healthily, I find out if they are dependent on me for anything and let them get on with it. Maybe I should do more in writing but I choose reputable contractors and all work is fully invoiced…’ In terms of prosecution for H+S breaches, providing the Domestic Client has fulfilled their duties (not covered in detail in this summary) prosecution is highly unlikely. Domestic Clients should make sure the site is safe and secure, tidy and clear of obvious hazards. There was some discussion based on the meaning of a series of CDM-specific terms; Project Manager, PD, PC, Client, Domestic Client, Business or Business Activity, Contractor, design, designer as well as others. Please refer to the full discussion for a more detailed discussion. But it was convincingly argued (with supporting evidence, and some unevidenced dissention) that a Domestic Client cannot be either a Principal Contractor or Principal Designer. Additionally, there was some discussion of official legal documents related to CDM2015. In summary: be sure to understand the meaning of the term Domestic Client, and to maintain that status throughout the build. Any competent person with whom you have a contract to complete work on your site should be capable of working safely. Offer support to fulfill H+S requirements, but never offer advice or direct work or manage the process. If, after reading this summary you feel you need to, take care to seek advice from more than one reliable, authoritative source. Paying for advice does not guarantee its accuracy or authority. Source url forum.buildhub.org.uk/ipb/topic/2376-principal-designer-role/ Bibliography. HSE (2015), Managing health and safety in construction. Construction (Design and Management) Regulations 2015, HSE Books downloaded 04/05/2017 http://www.hse.gov.uk/pubns/priced/l153.pdf See especially Appendix 6. HSE (2015), How CDM 2015 applies to Domestic Clients Appendix 6, Figure 1, in Managing health and safety in construction. Construction (Design and Management) Regulations 2015. Download the flow chart (from our server) here HandSforDomesticClients.pdf HSE Construction Discussion Forum (accessed 04/05/2017)