Principal Designer role

[Jeremy Harris]

7 minutes ago, B52s said:

[i.e. the newly formed company created by the self builder]

 

This is plain madness!  The topic comes up regularly on self-build debates, and not just on this forum.  If self-builders had to become businesses then it would increase the cost of self-build to the point where no one would attempt it, as it simply wouldn't be in any way viable.

 

The government has long accepted that self-builders are not businesses, and have framed legislation around this, for example that relating to tax and VAT.  The clear intent of government is to continue to encourage self-build, as a part of the strategy for delivering new homes.  This has been stated, and more than that, openly encouraged, with schemes such as the one at Graven Hill, Bicester.  These schemes go so far as to remove as many hurdles as possible for self-builders, and specifically preclude businesses from taking advantage of them.  If self-builders were forced to become businesses then schemes like Graven Hill would just collapse, taking millions in public money with them.

 

[B52s]

3 minutes ago, PeterW said:

 

Sorry, that is never going to happen !! Its not a requirement under any existing legislation and would create an administrative nightmare and HMRC would have a fit..!!

 

 

Okay, so as you rightly point out, there are only 4 possible scenarios offered forward by CITB:

Option 1 - DIY (exempt from CDM2015)

Option 2 - Appoint a principal designer and principal contractor under CDM2015 (extremely limited CDM input by self builder).

Option 3 - Employ a contractor who is then appointed principal contractor under CDM2015, also appoint a principal designer (extremely limited CDM input by self builder).

Option 4 - Forming a company to act as contractor under CDM2015. (extremely unlikely consideration for self builders).

 

So PeterW, what option would you choose for yourself if you were a potential self builder?

[PeterW]

Option 3 by default - which is where this all starts. If I don't appoint them as a domestic client, they become automatic anyway.

 

My insurer has stated I have obligations (under Public Liability) which extend to to outside of the construction site as it is the entirety of the plot insured - CDM2015 only accounts for the construction site element. Even they don't believe there are CDM2015 implications for self builders and they are probably the largest specialist self build insurer in the market.

 

 

 

 

[Jeremy Harris]

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.

[B52s]

I would suggest that a further option should have been included as this appears to have been overlooked by CITB:

Option 5 - As a domestic client, if you do not appoint a principal designer and principal contractor, under CDM2015, client duties will automatically be transferred to others (no CDM input by self builder).

 

Regulation 7(2) of CDM2015 confirms:

(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.

[ToughButterCup]

9 minutes ago, JSHarris said:

[...]

 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.

[...]

 

I could not make a more powerful argument for the art, the effort, the energy needed to make complex high-stakes information simple to read and understand.

 

Unless, of course there's a conflict of interest: and that's been alluded to often in this thread.

[B52s]

16 minutes ago, JSHarris said:

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.

 

 Sorry to be a pain JSHarris, but could you point me to the specific clause in the SI that makes you arrive at this position.  Clearly, if the self build is undertaken as DIY, then indeed it is exempt, but under other arrangements?

Many thanks.

[Jeremy Harris]

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.

[Jeremy Harris]

1 minute ago, B52s said:

 Sorry to be a pain JSHarris, but could you point me to the specific clause in the SI that makes you arrive at this position.  Clearly, if the self build is undertaken as DIY, then indeed it is exempt, but under other arrangements?

Many thanks.

 

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!

[PeterW]

5 minutes ago, B52s said:

 Sorry to be a pain JSHarris, but could you point me to the specific clause in the SI that makes you arrive at this position.  Clearly, if the self build is undertaken as DIY, then indeed it is exempt, but under other arrangements?

Many thanks.

 

Ok whilst @JSHarris is doing that, can you @B52s clearly define from the SI how you believe self build by an individual is not exempt from CDM2015 as then we have both sides. 

 

Please can we ensure we use the SI and not any interpretation or guidance notes as this is the legal position we are looking at, not a 3rd party interpretation. 

 

Thanks

 

[B52s]

1 minute ago, JSHarris said:

 

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.

 

No, no JSHarris, that is not necessary - I can very easily do that myself.  I just mean't that if you were referring to a specific clause (at hand) it would have been good to be on the same page as you, so to speak.  But thanks again for your kind offer.

[ToughButterCup]

5 minutes ago, PeterW said:

[...] Please can we ensure we use the SI and not any interpretation or guidance notes as this is the legal position we are looking at, not a 3rd party interpretation. 

 

Oooooh.

[B52s]

3 minutes ago, PeterW said:

 

Ok whilst @JSHarris is doing that, can you @B52s clearly define from the SI how you believe self build by an individual is not exempt from CDM2015 as then we have both sides. 

 

Please can we ensure we use the SI and not any interpretation or guidance notes as this is the legal position we are looking at, not a 3rd party interpretation. 

 

Thanks

 

 Okay, but right now I need to get back to "keeping the wolf from the door".  I'll post later.

p.s. "self build by an individual" is DIY which is clearly exempt from the SI. If you are not DIY, then the SI applies in all cases.

[PeterW]

Thanks - lets pick this up later 

[Steptoe]

The issue arises when the client does not appoint a main contractor, but in fact has many different contractors doing various stages, 

I fail to see his you can appoint numerous main contractors,

You can either appoint one, who then appoints (subs) the other contractors, or you, yourself, are the main contractor, and you contract everyone else, would that be defined under diy,? 

 

[jamiehamy]

I've kept out of this thus far - mainly because I'm not comfortable with CDM responsibilities and how they apply to a self builder. And what is clear is that really, no-one is at all. It's all down to interpretation, all versions of which could be 'correct'. 

 

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. 

 

This debate hadn't really helped me much in terms of providing clarity - and that is in no way a criticism - its just that overall the legislation is totally inadequate for what we are doing. 

[divorcingjack]

1 hour ago, Steptoe said:

The issue arises when the client does not appoint a main contractor, but in fact has many different contractors doing various stages, 

I fail to see his you can appoint numerous main contractors,

You can either appoint one, who then appoints (subs) the other contractors, or you, yourself, are the main contractor, and you contract everyone else, would that be defined under diy,? 

 

As far as I know, DIY only applies where YOU (as the self builder) are undertaking every single task with your own hands, and there are no paid contractors on site. 

 

Subject to updates later on, we are going to let each contractor on site be the "main contractor" for that stage. The issue comes when we have both an electrician and plumber on site at the same time. Who is PC for that stage? I can't see a normal contractor wanting to take responsibility for the work of a fellow contractor. 

[PeterW]

6 minutes ago, divorcingjack said:

As far as I know, DIY only applies where YOU (as the self builder) are undertaking every single task with your own hands, and there are no paid contractors on site. 

 

Subject to updates later on, we are going to let each contractor on site be the "main contractor" for that stage. The issue comes when we have both an electrician and plumber on site at the same time. Who is PC for that stage? I can't see a normal contractor wanting to take responsibility for the work of a fellow contractor. 

 

So in this case Regulation 16(2) relates and each contractor is responsible for their safety. 

[Steptoe]

4 minutes ago, PeterW said:

 

So in this case Regulation 16(2) relates and each contractor is responsible for their safety. 

But who is responsible for the safety of the site,?

That, is the question,

I don't think anyone is in any doubt about each, and every contractor, at any stage being responsible for their own safety, that's not what this is about, 

Its about ensuring a safe site, or are some people misinterpreting the purpose of CDM,? 

[PeterW]

11 minutes ago, Steptoe said:

But who is responsible for the safety of the site,?

That, is the question,

I don't think anyone is in any doubt about each, and every contractor, at any stage being responsible for their own safety, that's not what this is about, 

Its about ensuring a safe site, or are some people misinterpreting the purpose of CDM,? 

 

CDM is about whole system safety, not elements of it however the way it is written as a Statutory Instrument it has to cover every eventuality for all sites. CDM2015 is valid from a small build of a brick outhouse by a builder right up to a new power station - hence why there is grey and ambiguity in it, along with items that will never even be considered by a self builder.

 

What many people do not understand is the interaction between legislation, and the Statutory Instruments. Take the line below for example :

 

[From CDM 2015 Legislation]

 

Explosives

21.—(1) So far as is reasonably practicable, explosives must be stored, transported and used safely and securely.

 

That's it, the sum total of the legislation in CDM 2015 about that subject.It completely fails to mention the following :

 

Explosives Act 1875

Explosives Regulations 2014 

Explosive Substances Act 1883 

 

Yet all of those have significant and onerous requirements on the contractor who uses them, yet CDM 2015 assumes the contractor is aware of these.

 

In the same vein, and taking your point, under the CDM 2015 legislation a domestic client is responsible for site safety only where they can control it :

 

16 (3) A domestic client who controls the way in which any construction work is carried out by a person at work must comply with the requirements of this Part so far as they relate to matters within the client’s control.

 

That is how the distinction is drawn, and that is how a court would look at the evidence. Was the item under the clients control..?

Edited April 20, 2017 by PeterW
posted too soon !!

[Jeremy Harris]

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.

 

 

Edited April 20, 2017 by JSHarris

[ToughButterCup]

1 hour ago, jamiehamy said:

[...]

This debate hadn't really helped me much in terms of providing clarity - and that is in no way a criticism - its just that overall the legislation is totally inadequate for what we are doing. 

 

To the extent that CDM2015 affects self builders, I hope to remedy that by providing a referenced precis of the conclusions. In doing so, there is little point in following every twist of the debate set out here. 

To do this thread justice I have had to read and re-read it (all of it) at least half a dozen times. And I expect to do so a few more times in the near future. That's the problem with asynchronous communication: and also the rationale for providing carefully drafted summaries. They help readers maintain the original focus.

 

 

Edited April 20, 2017 by recoveringacademic
correction for clarity

[ToughButterCup]

1 hour ago, JSHarris said:

[...]

 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.

 

Click. At last, at very long last.

Thank God for a drop of rain, then.....

Ian

[PeterW]

2 hours ago, JSHarris said:

“business” means a trade, business or other undertaking (whether for profit or not);

 

Just to close this off the definition of business is clear here however  in the Companies Act you will also find the legal definition of "undertaking" which is very relevant to this discussion. 

 

http://www.legislation.gov.uk/ukpga/2006/46/part/38/crossheading/meaning-of-undertaking-and-related-expressions

 

 

 

[Jeremy Harris]

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!