Principal Designer role

[ToughButterCup]

@Triassic and @divorcingjack, finally we come, hopefully, to answering the question @divorcingjack asked in the first place.

 

And I think the answer lies in determining your status as far as CDM 2105 is concerned. I say that because  have read and re-read this thread so many times I dreamt about it last night. If you are a Domestic Client, I think it would be hard for anyone to show that you are a competent person to 'appoint' (not sure if that term is right) anyone as PD. Nowhere is a Domestic Client directed to appoint a PD.

I think everyone is suffering from a serious - if unintended - case of poorly drafted guidance at a series of levels.

 

 

[ToughButterCup]

@ everyone...... might it be an idea to use the HSE Construction Discussion website to discuss the same issue? I ask not to imply criticism, more to inform and to widen our discussions . I should add that this strategy is common practice in online discussions in the academic sector. It helps reduce that horrible thing 'shared ignorance'

 

How about I ask (I am already registered) something like:

 

As a Domestic Client, do I have the  responsibility in law to appoint a Principal Designer?

If there's sufficient agreement, I'll separate this bit out and put it into another thread.

 

[divorcingjack]

Ok. So, I would just leave it at the default. BUT, and this is the critical bit for us - we don't want to do that. Our architect is also a friend, and is uncomfortable with taking on the role, having told us as much. I don't want him to potentially be in trouble in a worst case scenario. 

 

Can he appoint a PD to take on his role? What if he appointed the person we're planning on using? Surely an architect is classed as "competent" and they are also a business. Would that work? 

[ToughButterCup]

Just now, divorcingjack said:

[...].

Our architect is also a friend, and is uncomfortable with taking on the role, having told us as much. I don't want him to potentially be in trouble in a worst case scenario. 

[...]

 

Tricky, horribly tricky.

Strikes me that plenty of others must have solved this issue: we didn't invent it. Let's get our heads down and worry this one to the bitter end.

[Jeremy Harris]

1 minute ago, divorcingjack said:

Ok. So, I would just leave it at the default. BUT, and this is the critical bit for us - we don't want to do that. Our architect is also a friend, and is uncomfortable with taking on the role, having told us as much. I don't want him to potentially be in trouble in a worst case scenario. 

 

Can he appoint a PD to take on his role? What if he appointed the person we're planning on using? Surely an architect is classed as "competent" and they are also a business. Would that work? 

 

Your architect can resolve the issue any legal way he wishes, as long as he makes the decision and takes the action, not you.

 

He may not wish to be the Principal Designer, but no matter what he does the law may well see him as having that role, whether he likes it or not and whether or not he's tried to give the job to someone else.  If he's doing the core design work, then by definition it is he that will be considered to be the principal designer, I'm sure.

 

As with the H&S@WA 1974, there is no way to devolve yourself of your own legal responsibilities by trying to pay someone else to take them for you, or to ensure against them.  Insurance has no value as you cannot, in the UK, insure against the consequences arising from an illegal act.

[ToughButterCup]

Here's a list of HSE website discussions about Domestic Clients. I would have filtered it more, but just got to pop out for a bit. I'll get back to it as soon as I can.

Ian

[B52s]

It is my understanding that self builders can appoint a principal designer if they so wish.  As said previously, there are many reasons why a self builder would choose to exercise this right.  The main reason appears to be that it is common place for architects working on domestic projects not to have the necessary CDM skills, knowledge and experience to undertake the principal designer role and therefore are unable to offer or accept this role.  Under these circumstances and to facilitate commencement of architectural design, the domestic client will be required to appoint a principal designer.  Architects can often assist the domestic client in this regard by suggesting organisations that would be able to fulfil the role.  If the domestic client does not appoint a principal designer, this may well delay the commencement of design as the architect would be foolhardy to proceed “at risk” of being automatically selected as principal designer due to being the designer in control of the pre-construction phase.

 

I fully agree with JSHarris in his clear legal definition of appointment.  However, as JSHarris points out, "appoint" is used widely in construction circles to refer to "contract with".  In the case of the contractual relationship between a domestic client and a designer, the word "appoint" means "contract with".  The term "appoint" adopted in CDM2015 is no different.

 

I feel it serves little purpose in taking the term “appoint” out of the context of the statutory CDM regulations that are applicable to the construction industry and have been since 1996.  It is also to be noted that in the event of a serious accident, the HSE will focus in on the intentions of the “project team” in respect of compliance with the spirit of the CDM regulations rather than scrutinising the domestic client’s interpretation of “appoint”.  The HSE have made it absolutely clear that it has no intention of pursuing domestic clients for breaches in CDM as it recognises that it is unable to prosecute domestic clients under the Health and Safety at Work Act 1974.  Domestic clients do have a duty of care, however, I do not wish to dwell on this as I feel its best that I concentrate solely on CDM where I can provide meaningful assistance to self builders.

 

Regulation 5 of CDM2015 draws attention to the absolute need for clients to make appointments in writing.  This supports JSHarris’s comments regarding contractual relationships in respect of appointments.  It must be pointed out that Regulations 5(1) and 5(2) are applicable to clients (i.e. both commercial and domestic clients).  In terms of domestic clients, Regulations 5(1) and 5(2) are only extinguished if the domestic client fails to make the appointments.  As discussed in previous posts, under these circumstances, the duties are automatically transferred to other dutyholders.

 

So, if a domestic client [self builder] wants to appoint a designer with control over the pre-construction phase as principal designer, then it is a perfectly reasonable request and is supported by Regulation 5.

 

NOTE 1:  The appointments made by the domestic client (as outlined above) are time sensitive as the contractual arrangements require to be terminated at the point when the construction phase commences.  The principal designer (and other designers) can be novated to (i.e. work to) the principal contractor to allow these roles to continue, however, it maybe far simpler, from a domestic client perspective, to terminate all appointments at this juncture.

 

NOTE 2: If design work requires to be undertaken during the construction phase, regulation 7(2)(a) will apply by default.  The effect of this means that the designer in control of the pre-construction phase of the project is the principal designer.  The [second] pre-construction phase commences when the construction phase starts.  Noting that the previous [first] pre-construction phase, where appointments may have been made by the domestic client, has been severed by way of agreed terminations of appointment/contract.

 

NOTE 3: In respect of CDM2015, ‘pre-construction phase’ is not solely reserved for design work undertaken prior to the commencement of the construction phase.  The reason for this is that it is widely accepted in industry that design work often continues during the construction phase (e.g. kitchen fit-out, designing electrical, plumbing and heating installations, etc.).

 

As discussed in Appendix 6 (para. 6) of the CDM Guidance Note; As a result of a principal contractor taking on the client duties in relation to managing projects as detailed in regulation 4, the principal designer involved in the project will work to [be novated to] the principal contractor in their role as the ‘client’.  If the domestic client does not appoint a principal designer, the role of the principal designer falls to the designer in control of the [second] pre-construction phase of the project.

 

NOTE 4:  CDM2015 does not use the terminology ‘first’ or a ‘second’ pre-construction phase of the project. I have merely added this to try and provide a line in the proverbial sand where the primary design work is carried out (prior to construction) and where further design work is undertaken during the construction phase.

Edited April 25, 2017 by B52s

[Jeremy Harris]

I will only add that, as the former manager of multi-million pound contracts in my old day job, there is absolutely no way that I would take the risk, as a self-builder, of appointing anyone into any legally binding role.  It's a minefield of potential personal liability, and one that self-builders are very well advised to stay well away from, and let their contractors sort out amongst themselves, as they are required to by law.

[divorcingjack]

33 minutes ago, JSHarris said:

no way that I would take the risk, as a self-builder, of appointing anyone into any legally binding role.  It's a minefield of potential personal liability

 

This has me wary, Jeremy. So, in my situation (needing a PD who is NOT my architect, due to a friendship), what would you do?

 

@B52s, you're of the opposite opinion to @JSHarris and I did find your argument convincing. Have the HSE actually issued any documentation about not wanting to prosecute domestic clients? 

 

A proper minefield, and no mistake. 

[Jeremy Harris]

The simple answer is that if you appoint someone then you are accepting some liability, because the act of appointing someone implies that you are sufficiently knowledgeable as to understand whether or not that person has the skills, experience and training to undertake that role safely, and in accordance with the law.

 

If you contract with someone, as a domestic client, to do the same task, then the law does not expect you to have the knowledge or experience to judge whether that person is competent.  The liability rests almost wholly on the person you contract.

 

Here's a couple of non-building related examples, by way of an illustration:

 

You are working in an amateur dramatic association, with other people.  You appoint someone to erect a scaffold tower to paint some scenery, because they are the nearest person to you at that time.  They do as you have told them to, and erect the scaffold.  The scaffold collapses because it was incorrectly erected.  Both the person that erected it, and you, share liability.  Before appointing the person to do the job you had a responsibility to determine whether they had the right skills and training to do the task.

 

You are working in an amateur dramatic association, with other people.  You place a contract with someone you believe to be competent to erect a scaffold tower to paint some scenery.  They do as they have been contracted, and erect the scaffold.  The scaffold collapses because it was incorrectly erected.  You almost certainly bear no liability at all.  You placed a contract in good faith, and had a reasonable expectation that the person you contracted with was competent.

 

 

Edited April 25, 2017 by JSHarris

[divorcingjack]

Ok. So - what wording do I need to use to "contract" with this person, rather than "appoint" them? Is it about wording? Or is it the fact that PD is a legal duty holder, and I cannot "contract" with someone to do this role? 

[Jeremy Harris]

You cannot appoint or contract with someone to take on a role that devolves you of responsibility that the law requires you to hold.  However, as a domestic client you cannot lawfully assume any responsibility.  Therefore you contract with someone to take on a task, and one part of that task consists of assuming certain legal responsibilities.  For example, you contract with a main contractor and the main contractor, because he/she has offered to take that role, has, in law, to accept the responsibilities that go with that contract.

[Steptoe]

On 24/04/2017 at 11:43, JSHarris said:

 

 

The simple answer is to not worry about it, as it isn't your problem, in law.  You're a domestic client, and the fact that your contractors (including your architect) refuse to accept these responsibilities is entirely their problem, not yours.  They haven't got a leg to stand on if they were legally challenged, but you are fine, you just reiterate that you are a domestic client under CDM2015 and do not have the responsibility, or authority, to appoint anyone into any role, you're simply contracting for a service and expect all those you contract with to act professionally and wholly within the law.

 

The problem remains yours, as you have failed to contract someone to take on the role, just because people refuse to accept the contract doesn't absolve you of the liability of requiring the position to be filled.

 

1 hour ago, JSHarris said:

You cannot appoint or contract with someone to take on a role that devolves you of responsibility that the law requires you to hold.  However, as a domestic client you cannot lawfully assume any responsibility.  Therefore you contract with someone to take on a task, and one part of that task consists of assuming certain legal responsibilities.  For example, you contract with a main contractor and the main contractor, because he/she has offered to take that role, has, in law, to accept the responsibilities that go with that contract.

And, therein lies the crux, if you use more than one contractor, you cannot then have a main contractor,

You can have several different contractors, but if you have obtained their services individually, as many self builders do, then you no longer have a main contractor.

[jamiehamy]

1 hour ago, JSHarris said:

Therefore you contract with someone to take on a task, and one part of that task consists of assuming certain legal responsibilities.  For example, you contract with a main contractor and the main contractor, because he/she has offered to take that role, has, in law, to accept the responsibilities that go with that contract.

In a nutshell. 

[B52s]

I have attached a copy of the slides from the legal update provided by Gillian Birkby of Fladgate at the APS (Association for Project Safety) Conference on small projects that I attended in September.  A keynote address was also delivered by Simon Longbottom of the HSE.

 

There is not a lot of useful information in the slides particular to self builders.  However, I did feel that one point worth noting was a "one liner" that appears on page 5. "Accurate Terms of Appointment".  The "one liner" from the presentation does not give much away but the absolute requirement for accurate terms of appointment for principal designers appointed by domestic clients was highlighted by Gillian Birkby, Fladgate solicitor.

 

I felt this was worth sharing, given the recent discussions on the BH forum in respect of the legality of appointments made by domestic clients.

 

Gillian Birkby - Legal Update, Fladgate LLP.pdf

[B52s]

The APS Form of Appointment as Principal Designer 2015 (digital copy) can be purchased from http://www.aps.org.uk/publications/aps-form-appointment-principal-designer-2015-digital?id=186

 

This is the recognised industry standard Form of Appointment between Client (commercial or domestic client) and Principal Designer. 

£12.50  Member /  £15.00  Non-Member

 

Apologies in advance if this is considered to be in breach of the BH forum terms of advertising, but I felt this important information was worth sharing as it may help self builders who require "comfort" in the process of appointing a principal designer.

[PeterW]

I didn't think that this form was valid for Domestic Clients as it refers to the business location or registered office when relating to client in the memorandum ..?

 

Deleting a line in a definition at the start of a standard agreement where there are marked paras for deletion towards the end i.e. a document with agreed variations, would be rather unusual as it changes the terms of the document. 

 

I am referring to the sample available so I suggest if someone does want to validate it then they purchase a copy ... 

 

http://aps.legallio.com/Documents/Agreements/83feca3a_4931_4221_8777_3d93fa1d8074.pdf

[Jeremy Harris]

It is not valid for domestic clients.

 

Quite why this keep being raised again and again is beyond me.  The law is clear, with no ifs, buts or maybes.  It's almost as if someone is trying to sell something that self builders neither need or require.....................

[jamiehamy]

I'm not really sure what's going on here. Whether you are getting a firm in to fit new windows or install a new roof,  or build you a house,  if you are DIY or Self Build,  you are not responsible for CDM 2015.  Whoever you bring in,  whether a main contractor,  one single contractors or a variety of contractors is responsible for ensuring they operate in a manner compliant with CDM 2015 and any other safety standards. 

 

If self builders start trying to 'appoint' people to roles incorrectly,  not only are they going to confuse things but could create a legal mess should an event occur. 

 

It's the job of contractors,  builders, joiners, decorators etc to ensure they work safely first and foremost. It's not our job to try do their job.  

 

 

[ToughButterCup]

18 minutes ago, JSHarris said:

It is not valid for domestic clients.  Quite why this keep being raised again and again is beyond me.  [...]

 

The thread is long, detailed and closely argued. Most people do not read Internet-based information for detail. They scan information grab, hop, flick through the text; call it what you will. That's why a summary of such a thread is one useful way of re-presenting detail - as well as an encouragement to go to the source. I ought to try and find time to do some sort of  graphic to go with the summary. 

Thanks J for your persistence and patience.

Ian

[B52s]

9 hours ago, PeterW said:

I didn't think that this form was valid for Domestic Clients as it refers to the business location or registered office when relating to client in the memorandum ..?

 

Deleting a line in a definition at the start of a standard agreement where there are marked paras for deletion towards the end i.e. a document with agreed variations, would be rather unusual as it changes the terms of the document. 

 

I am referring to the sample available so I suggest if someone does want to validate it then they purchase a copy ... 

 

http://aps.legallio.com/Documents/Agreements/83feca3a_4931_4221_8777_3d93fa1d8074.pdf

 

It is quite normal for terms of appointment, contracts, agreements, etc. to be tailored to suit a client's specific requirements (even if it means "fine tuning the small print").  So long as both parties are in agreement with the "tailored adjustment" and then signed, this would be legally binding.  Terms of appointment written by professional bodies like RIBA and APS provide maximum protection for domestic clients.  On the other hand, a contract agreement scribbled on the back of a fag packet and signed will equally be legal binding, however, the terms of the contract (or lack of) might expose the client to significant risk.

 

The use of the RIBA or APS terms of appointment provides comfort to the domestic client that the design organisation offering principal designer services meets with the professional QA standards set by a professional body, including having the necessary PI cover, etc. 

 

Edited April 26, 2017 by B52s

[B52s]

On 4/24/2017 at 12:07, divorcingjack said:

Ok. So, I would just leave it at the default. BUT, and this is the critical bit for us - we don't want to do that. Our architect is also a friend, and is uncomfortable with taking on the role, having told us as much. I don't want him to potentially be in trouble in a worst case scenario. 

 

Can he appoint a PD to take on his role? What if he appointed the person we're planning on using? Surely an architect is classed as "competent" and they are also a business. Would that work? 

 

Yes, the architect could do this.  The outsourced PD service provider (organisation) would then become the default PD during the pre-construction phase rather than the role falling to the architect.  This arrangement is not detailed with CDM2015, but it is accepted practice (i.e. acceptable to the HSE) and is entirely compliant with CDM2015.

Edited April 26, 2017 by B52s

[PeterW]

11 minutes ago, B52s said:

 

It is quite normal for terms of appointment, contracts, agreements, etc. to be tailored to suit a client's specific requirements (even if it means "fine tuning the small print").  So long as both parties are in agreement with the "tailored adjustment" and then signed, this would be legally binding.

 

Errr no it's not ..!! I do this as a day job and if someone presented me with a standard contract that has options for amendment (which this does around the latter pages) and they had crossed out part of the definition of key terms which that statement is, I would run a mile ..!! 

 

It would also potentially impinge on the unfair contract terms act as you are materially altering the definition of a contracting party to the advantage of the other...!!

 

There is no way that for a  domestic client it would be reasonable (man on the Clapham omnibus) for them to be expected to understand the terms in a 10 page appointment document that does not mention "domestic client" once but focuses entirely on "business" throughout. 

 

Suggest it's one for the APS lawyer to answer 

[Jeremy Harris]

My view is that this thread has now run it's course, and that the summary that @recoveringacademic has carefully compiled here:

should be considered to be the definitive source of information for self-builders. 

 

For those who are not self builders, but who are building as a part of a business, and so are bound by CDM 2015, as they are not domestic clients, then I would suggest that it is very unsafe to rely on information from an internet forum when it comes to getting legal advice.  I'd also add that relying on any legal advice obtained from someone not practising law is also inadvisable.  I've seen several accident cases where individuals made assumptions as to their liability based on advice obtained from the media, friends and even consultants, that proved to be wrong and ended up costing them dearly.

 

Self builders are, by definition domestic clients as far as all building-related legislation is concerned, and the guiding principle to be remembered is that legislation aimed to improve the safety and welfare of workers on construction sites, in whatever statute, is not intended to apply to someone who is a domestic client.

 

The sole exception to this is the law that covers each and every one of us every day, with regard to the reasonable duty of care we each have to each other.  It is worth remembering that the word "reasonable" has no definition in the law of England and Wales (not sure about Scotland and NI, but I think it's the same).  If you are an ordinary citizen, with no specialist training or knowledge, then what is considered "reasonable" in terms of your actions or inactions will be judged on that basis.  As soon as you seek to acquire recognised skills and knowledge that means that a court may consider that you have an enhanced duty of care your liability increases. 

 

As an example, I used to teach electricians at technical college many years ago, and for years held a ticket myself.  Even though I no longer hold a valid chit to work as an electrician today, I would still be considered by a court to have a higher duty of care to others in terms of electrical advice than someone with no such experience.  It's the reason I spent a great deal of time clarifying certain points in my blog, after making a typo here that was picked up on and used to condemn me as giving dangerous advice.  I felt strongly enough about making sure that my own liability was reduced as to not only quickly correct the typo but also to spend three days writing two articles to clarify things.  Those articles were not written from the goodness of my heart, they were written to reduce my personal liability!

 

 

Edited April 26, 2017 by JSHarris
typo - missed out the words "relying on"

[B52s]

1 hour ago, PeterW said:

 

Suggest it's one for the APS lawyer to answer 

 

My view would be that "client" is defined as stated in the CDM2015 SI.  “Client” means any person for whom a project is carried out.

 

Yes, I will ask for legal advice on the application of the APS Terms of Appointment. This may take 30 days, but I will revert with a legal opinion.