Hi,

I have a question for the fourm, something has come up in my line of work that doesn’t quite fit the normal CDM hierarchy I've used before.

I provide HSEQ advice to my clients and I also work as a Principal Contractor.

The situation is this;

One of my clients has one a tender for a CDM job, and wishes to employee me as the Principal Contractor. In the past their client has appointed me (as will be the case now) however this time around it will be my client that will pay me.

As far as I can see if the Client (having the work done) has appointed me in writing then the payment side is purely under contractual agreement.

Has anyone come across this situation before?

Thanks in advance

Mark

I get the feeling that historical practice using the contract for services being considered the "appointment" is the matter causing confusion.

The regulations do not cover the financial interaction between parties involved in construction.

I would be looking that the appointment (duration etc..) is reflected in the contract for payment.

Mark - yours is a variant on a Q I have been asked on numerous times since the outset of CDM over 25 years ago.

The simple answer is don't mix up criminal law [i.e. statutory duties under CDM] with contract law [including who pays whom for what services].

There will often be an overlap between criminal and contract - so, it makes sense to consider whether the contractual specifications are consistent with facilitating compliance with statutory duties by each of the CDM duty holders. 

For  you this means considering whether you have access to all the resources [of various kinds] you would need to discharge the statutory duties of the PC. 

Almost all my experience has been on substantial projects where it would be difficult to conceive of a situation where the role of PC could be discharged by a human rather than corporate "person", so the role has been routinely given to an organisation in both criminal and contract law. But, I suppose that a human person could discharge the role IFF the contract gives them access to the Contractor's resources. 

Prior to CDM 2015, the role of CDM Co-ordinator [and previously Planning Supervisor] was often done by health and safety consultants, sometimes sole traders. HSE concluded that this model hadn't worked and changed the rules in CDM 2015 to ensure that the Principal Designer was at the centre of decisions in the "pre construction phase" - which usually means the role being given to the Client [or one of the Clients], Lead Designer or Project Manager.

Your scenario sounds similar to what used to be commonplace as regards the CDMC or Planning Supervisor. Possibly you should consider whether it would be more sensible for the Contractor [or even the Client, depending on the nature of the project] to take on the role of PC with you acting as their CDM Advisor [and perhaps a wider role].

If the Contractor says, as a most basic example, we will provide X units of welfare accommodation and you think they need twice as much, will your opinion be the one that counts? If the Contract says YES, then maybe you are OK.