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Geoff Wilkinson’s Regs: The [HSE’s] Fee For Intervention will recover costs from those who break health and safety laws

 Site deaths are on the rise and architects can be prosecuted for unsafe designs, warns Geoff Wilkinson

Last year 50 construction workers lost their lives in the UK, an increase on the previous year and a worrying trend after years of improving figures. As well as the fatalities, 2,298 major injuries were reported and 1.7 million working days were lost through work-related ill health.

Readers will, no doubt, be aware that the Construction (Design and Management) Regulations 2007 (CDM) place legal duties on just about everyone involved in construction work, with architects falling under the general term of ‘designer’. But in my experience many architects (especially small or sole practices) fail to fully consider the need to design out risk from both construction and ongoing maintenance activity. For example: heavy beams or lintels are commonly specified without consideration of site access conditions and manual handling advice; and windows and concealed gutters are often positioned without thought about how they can be cleaned safely.

While it is not common for designers to be prosecuted under CDM, there have been such cases, most famously in 2010, when the architects of a Somerset development were fined a total of £180,000, including costs, following the death of an operative while he was working on the air conditioning plant. This had been built on a platform accessed via a ladder at the edge of a flat roof. The roof only had a low parapet - not high enough to prevent him falling 9m to the ground.

The architects pleaded guilty to breaching Regulations 13 and 14 of CDM 2007, which specifically require designers to take safety considerations into account.

Speaking after the hearing, the Health and Safety Executive inspector involved said: ‘While it is rare for designers to be charged with breaching health and safety legislation, they must be aware they can be held responsible where bad design is an important contributory factor to a workplace fatality. HSE will not hesitate to take enforcement action against any company or individual who fails to carry out their health and safety duties, especially when that failure results in a tragedy.’

It is timely to be reminded of these duties, as the HSE Construction Division has recently set out its Plan of Work for 2012-13 and architects should be aware that, over the next 12 months, HSE inspectors will be focusing on small sites and refurbishment projects, with working at height the number one of five generic activities identified as priorities for scrutiny.

I have already seen a stepping-up of activity by inspectors in recent weeks, including a stop notice issued on a private domestic project.
What is more, the HSE is testing its systems in the run- up to implementation of a cost recovery scheme, Fee For Intervention (FFI), which will start on 1 October this year, subject to Parliamentary approval. The FFI will recover costs from those who break health and safety laws for the time and effort the HSE spends helping to put matters right, such as investigating and taking enforcement action (at the bargain hourly rate of £124!). Currently, this is paid for from the public purse.

Another report relating to design, specification and site safety, released last month, addressed the issue of incorrectly specified roofing battens. Following an increase in the number of falls and injuries on site involving roofers, the HSE has revised its HSG33 Health and Safety in Roof Work guidance. Now, only recognised factory- graded battens can be considered as providing a secure foothold when installing a pitched roof, if roof ladders are not used. The use of BS5534-graded roofing battens is now mandatory for all NHBC sites and Local Authority Building Control has advised all building control officers to look out for breaches on site.

Geoff Wilkinson is managing director of approved inspectors Wilkinson Construction

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