Welcome Guest! The IOSH forums are a free resource to both members and non-members. Login or register to use them

Postings made by forum users are personal opinions. IOSH is not responsible for the content or accuracy of any of the information contained in forum postings. Please carefully consider any advice you receive.

Notification

Icon
Error

Options
Go to last post Go to first unread
ASW94  
#1 Posted : 15 July 2024 12:02:55(UTC)
Rank: New forum user
ASW94

Hi all,

Interested in getting peoples opinions on what appears to be a relatively divisive issue in the industry. 

Under CDM 2015, would you consider scaffolding contractors to have both the Contractor and Designer roles?

The definition of designer including those who arrange or instruct someone else to arrange a design and the definition of structure including scaffolding as support and means of access both seem to support the argument of scaffolding contractors being a Designer under CDM. 

Note, I'm mainly talking about scaffolding contractors who would engage the services of a scaffolding engineer / designer for a bespoke design. I imagine the interpretation of the law is a bit less obvious when it comes to using compliance sheets / recognised standard configurations.

peter gotch  
#2 Posted : 15 July 2024 13:54:02(UTC)
Rank: Super forum user
peter gotch

Hi ASW

Your first post here, so welcome to the Forums.

I am somewhat puzzled as to why you think that the question you have asked is a "divisive issue", not least since you specifically frame it in the context of "designed scaffolds" rather than what in ye olden days were described as General Access Scaffolds in HSE guidance note GS15.

Before the first iteration of CDM this was a recurring issue.

However, CDM introduced a definition of "construction work" (that has been tweaked very slightly since CDM 1994".

That definition was largely based on the definitions in Section 175 of the Factories Act 1961 of a "building operation" and "work of engineering construction", but with the legislators taking the opportunity to close some perceived loopholes in the application of construction H&S legislation, including as regards the sort of question you are asking.

So the CDM definition of "construction work" in its various parts brings in the definition of "structure"

“structure” means— (a) any building, timber, masonry, metal or reinforced concrete structure, railway line or siding, tramway line, dock, harbour, inland navigation, tunnel, shaft, bridge, viaduct, waterworks, reservoir, pipe or pipeline, cable, aqueduct, sewer, sewage works, gasholder, road, airfield, sea defence works, river works, drainage works, earthworks, lagoon, dam, wall, caisson, mast, tower, pylon, underground tank, earth retaining structure or structure designed to preserve or alter any natural feature, and fixed plant; (b) any structure similar to anything specified in paragraph (a); (c) any formwork, falsework, scaffold or other structure designed or used to provide support or means of access during construction work,

So, assuming that you have some "construction work" going on, then there doesn't appear to be much doubt that any scaffold that is erected in associated with the "construction work" will be a "structure" within the meaning of CDM.

Then the question comes to what constitutes "design", and from there responsibilities on any "designer".

“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;

I would note that compliance with CDM in relation to the design of scaffolds is probably very patchy, not least as this is usually done as part of Temporary Works (whether identified as TW or not) under the direction of the Principal Contractor or another Contractor and there might not be the appropriate level of oversight of this element of design by the Principal Designer.

However, that is an issue of implementation rather than intepretation of the Regulations where what CDM says seems very clear to me!

Perhaps the much bigger problem is where someone doesn't recognise the need for a "designed scaffold" and leave it to the scaffolders to get on with it. They they stray from erecting a straightforward scaffold due to the constraints they come across and do the "design" on the hoof.

As example there is a redevelopment happening at the building next door to where I live. So scaffolds up on front and rear elevations, in each case from basement well to 3rd floor level.

Problem is that at one end of the rear scaffold there is an outhouse which sits where the standards might have been expected to be. Couldn't found the scaffold on the outhouse as its roof is fragile to the point of very visible near collapse. 

So the solution found by the scaffolders was to foot the end standards on the party wall between two gardens. 

Should be patently obvious to all working on the project that this 19th Century wall was not designed for vertical loading and it seems that the scaffolders recognised this.

So to reduce the load down on to the wall, the upper lifts are in horizontal cantilever, so that most of the load is transferred to bear down on standards footed in the basement well.

It's possible that someone has actually sat down and produced a drawing to demonstrate that this affords an appropriate level of structural security - i.e there is a formal "design", but I am very doubtful that this is what happened!

Much more likely is that the scaffolders themselves have done an impromptu "design" to solve a problem. Seems to me that this is still a "design" within the meaning of CDM, with said scaffolders thence the "designer".

thanks 1 user thanked peter gotch for this useful post.
ASW94 on 15/07/2024(UTC)
ASW94  
#3 Posted : 15 July 2024 14:09:02(UTC)
Rank: New forum user
ASW94

Hi Peter

Thank you for the welcome!

The reason I described it as divisive is that when dealing with scaffold contractors they seem adamant that they do not fall under the role of Designer. When questioned on why they believe this, they point to advice given by their independent safety advisor. Not an isolated incident so far and I thought perhaps I should source some other opinions rather than declaring them all incorrect!

Personally I thought it was quite clear from the very precise wording of the CDM Regulations 2015 that they are Designers (barring any possible arguments regarding use of generally recognised configurations under say TG20, are you preparing or arranging a design if you're simply using what is already provided?). Going by the answer you've given, I'd say you're inclined to agree.

You've already posted quite a detailed response but if possible, could you expand on the paragraph about temporary works? Are you saying that if they're carried out under the guise of Temporary Works under control of the PC, that the scaffolder is potentially exempt from Designer status, or do you mean that they are Designers but are being "missed" as such?

Apologies if my question is a bit messy but this is an area I'm very much interested in. Thanks again for your answer!

firesafety101  
#4 Posted : 16 July 2024 10:12:11(UTC)
Rank: Super forum user
firesafety101

A Scaffold Design Engineer should design the scaffold, not to be confused with the Principal Designer for the project.

ASW94  
#5 Posted : 16 July 2024 10:19:40(UTC)
Rank: New forum user
ASW94

Originally Posted by: firesafety101 Go to Quoted Post

A Scaffold Design Engineer should design the scaffold, not to be confused with the Principal Designer for the project.

I agree a Scaffolding Contractor is unlikely to assume the role of Principal Designer. However, I was asking for peoples thoughts on Scaffolding Contractors being liable for the Designer role and it's subsequent duties. What are your thoughts?

achrn  
#6 Posted : 16 July 2024 12:48:02(UTC)
Rank: Super forum user
achrn

I would say yes whoever designs a designed scaffold is a designer under CDM.  It seems quite straightforwardly the case to me, whether that designer works for a scaffolder or a consultatnt.

It did cause some consternation and resistance when CDM first started that a contractor (general parlance) could be a Designer (under CDM), but I had thought that most parts of the industry had got that message by now.  Possibly it's less accepted among scaffolders.  I note that the scaffolders my company most often encounters are ones that have already decided they want an external designer (i.e. us) for the scaffold they are contemplating, so it's not for us contentious.

ASW94  
#7 Posted : 16 July 2024 14:10:09(UTC)
Rank: New forum user
ASW94

Originally Posted by: achrn Go to Quoted Post

I would say yes whoever designs a designed scaffold is a designer under CDM.  It seems quite straightforwardly the case to me, whether that designer works for a scaffolder or a consultatnt.

Sorry, I should have been more clear in my post. The part of CDM 2015 which I'm questioning is this:

"“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;"

Specifically the clause under (b). If a Scaffolding Contractor is instructing a subcontractor (a person under their control, e.g. the scaffold engineer / designer) to prepare or modify a design, does that not mark the Scaffolding Contractor as a Designer?

My interpretation is that yes, it does. So regardless of the fact that the Scaffolding Engineer / Designer is doing the actual design work, as they have been instructed to by the Scaffolding Contractor, the Scaffolding Contractor has become a Designer as defined in the interpretations section of CDM 2015.

What would be your interpretation of clause (b) of the Designer definition, and how it affects the resulting duties?

Edited by user 16 July 2024 14:10:48(UTC)  | Reason: Formatting

peter gotch  
#8 Posted : 16 July 2024 14:25:27(UTC)
Rank: Super forum user
peter gotch

Hi again ASW

Follow up since you specifically asked but I think achrn's answer does most of the talking for me.

For some strange reason CDM has always thrown up some "confusion" or perhaps as likely "unwillingness" for one CDM duty holder to accept that they might also fall within the definition of another duty holder, even when they might not have intended this to be the case.

CDM (and the parent EC Directive for much of its content) is based on a period of time called the pre-construction phase, and another the "construction phase", where depending on where you are in Europe the word "phase" might be translated as "stage".

It is almost natural to assume that these are along a time line where one follows the other but it is the norm that there is an overlap such that activities associated with the "pre-construction phase" such as "design" continue into the "construction phase" AND/OR that further "design" etc occurs during that phase.

Without going into the detail the duties on the Principal Designer (and the Client) extend to a degree of oversight of "design" whenever it happens. 

So supposing the Principal Contractor instructs some Temporary Works design, or e.g. a scaffolding contractor instructs the design of a scaffold (TW though often not accepted as being such), this might take place without the Principal Designer being sufficiently aware. How much the PD actually needs to know will depend on the circumstances, inclusive of what the TW might mean in relation to future works and thence what should perhaps be highlighted in the Health and Safety File for a "structure".

However, if some scaffolding contractor engages an "independent safety advisor" who influences the said contractor into thinking that they have no responsibility for the "design" of a scaffold, then said contractor should probably be looking for more competent advice!

It doesn't actually matter for the purposes of CDM (rather than the BS on Temporary Works) whether you consider the scaffold (designed or not) to be Temporary Works as CDM doesn't actually mention TW, but instead "design". 

ASW94  
#9 Posted : 16 July 2024 15:31:23(UTC)
Rank: New forum user
ASW94

Very grateful for all the knowledge being passed on Peter, apologies if it comes across like I'm missing the point.

I think the particular that I'm getting hung up on is this:

What type of arrangement, relationship, partnership, etc., would cause a person to be "under the control of another person" as relates to "(b) arranges for, or instructs, any person under their control to do so,"?

Is a subcontractor a "person under control" of another contractor? 

Leading to, is a Scaffold Engineer (whether an independent sole trader or part of another private or public company) a "person under control" of a Scaffolding Contractor when a design is requested from them?

This "any person under their control to do so" part seems purposefully vague and I can't find any other legal definition for what would define one persons "control" over another.

peter gotch  
#10 Posted : 16 July 2024 16:59:14(UTC)
Rank: Super forum user
peter gotch

Sorry, ASW but we would have been typing at the same time!

I don't think the wording is so much "purposely vague" so much as NOT exclusive.*

Each case has to be considered on its individual merits, but in my mind a scaffolding contractor who instructs A N Other to do a scaffolding design is likely to be interpreted as themselves being a "designer" unless they were to manage to show that the "design" was somehow outside their control.

*For comparison look at Sections 2 and 3 of HSWA. 

Section 2(1) sets out a general duty on the employer towards their employees. Section 2(2) sets out examples of how that general duty pans out.

In contrast in Section 3, such detail is not spelled out. It doesn't follow that issues such as those cited in Section 2(2) do not apply to the employer's general duty towards persons other than their employees.

To be honest (and I am someone who has worked for a company which has benefitted hugely from CDM, and someone who has benefitted personally as a consequence) I never thought that there was a need for a specific code of regulations to adequately transpose the requirements of the EC Temporary or Mobile Construction Sites Directive into law in Great Britain, though fairly minor changes to existing law would have been needed.

TMCSD could have been transposed via perhaps an Approved Code of Practice or even just guidance to explain how the principles of HSWA and the Management of Health and Safety at Work Regulations 1992 (at the time) could be applied to construction projects.

So, if you were to ignore CDM entirely, and considered the duties of the Scaffolding Contractor under HSWA and MHSWR how would they wriggle out of having a degree of responsiblity for work done by a designer they appoint?

If you have ever done Venn diagrams, you could draw a large circle representing the "set" that is HSWA, a smaller circle wholly contained within the "set" that is the "subset" representing MHSWR.

Then a second smaller circle which is mostly contained within the "set" to represent CDM. The bits outside the main circle would be:

1. The requirements for notification as the process is wider in terms of duty holders to be covered than was previously the case with Sections 175(6) and 175(7) of the Factories Act 1961.

2. Part 4 of the Regulations which by and large are a consolidation of requirements previously within the four codes of Construction Regulations 1961 and 1966, then consolidated into the Construction (Health, Safety and Welfare) Regulations 1996 which neatly stood alongide the management requirements of TMCSD in CDM 1994.

Edited by user 16 July 2024 17:00:21(UTC)  | Reason: Formatting

achrn  
#11 Posted : 18 July 2024 16:30:36(UTC)
Rank: Super forum user
achrn

Originally Posted by: ASW94 Go to Quoted Post

Very grateful for all the knowledge being passed on Peter, apologies if it comes across like I'm missing the point.

I think the particular that I'm getting hung up on is this:

What type of arrangement, relationship, partnership, etc., would cause a person to be "under the control of another person" as relates to "(b) arranges for, or instructs, any person under their control to do so,"?

Is a subcontractor a "person under control" of another contractor? 

Leading to, is a Scaffold Engineer (whether an independent sole trader or part of another private or public company) a "person under control" of a Scaffolding Contractor when a design is requested from them?

This "any person under their control to do so" part seems purposefully vague and I can't find any other legal definition for what would define one persons "control" over another.

I think the wording is not great, though if I'm being charitable I assume it's trying to be flexible and inclusive rather than purposefully vague.

I observe that the client is not a designer, even though the client clearly arranges for a design to be done.

I think the writers of the regs had a very narrow view of civil engineering contracts when they wrote the regs - they assume that a client wants something, the client asks a designer for a design, the designer gives the design to the client, the client gives the design to the contractor and the contractor builds it.  Overlapping design phase and construct phase, and D&B, and contracts that work one way at one level but down the contract chain work a different way were all ignored.

In the scaffold case, maybe further up the chain it is a classic contract (the client procured a design and passed it to the contractor to build) but at this level it becomes effectively D&B : main contractor awards work to a scaffold contractor, scaffold contractor needs a design so instructs someone to prepare said design.  Is that the scenario you are talking about? The question then is, does this instructing a design make the scaffold contractor a designer?

As set out, I would say not – I would argue the scaffold contractor is purchasing / procuring a design, but is not controlling the design.  I suspect some quite minor changes to the contract could change that conclusion though – it’s probably one where the court will reach its judgement taking account of the particular circumstances… (sorry, I am aware that makes the answer not very helpful).

Users browsing this topic
Guest (4)
You cannot post new topics in this forum.
You cannot reply to topics in this forum.
You cannot delete your posts in this forum.
You cannot edit your posts in this forum.
You cannot create polls in this forum.
You cannot vote in polls in this forum.