On 9 February 2017, the Health and Safety Executive announced that it will be consulting on whether to make its Fee for Intervention (FFI) scheme wholly independent.
The move comes amid ongoing criticism and a recent High Court decision to grant a judicial review of the process following an application by facilities management firm OCS Group. The Lord Justice Kerr said, “It is arguable that the HSE is, unlawfully, judge in its own cause when operating the FFI scheme; and that the scheme is either unlawful or being operated in an unlawful manner.”
The current FFI scheme
The scheme was introduced in October 2012 in order to place the cost burden of investigating, putting right and enforcing health and safety breaches on the guilty businesses instead of on innocent taxpayers. It was also thought that the potential intervention fees may act as a deterrent to businesses, with the hourly fee now being £129 plus VAT.
If HSE inspectors identify serious health and safety breaches (known as ‘material breaches’) which require them to serve a notice on a dutyholder to rectify the failing, then those dutyholders will need to pay for the costs of the HSE visit. Verbal advice does not attract a charge.
Dutyholders can appeal the decision, but the appeals process remains within the HSE. The primary review is undertaken by HSE senior management and the second appeals stage is to a panel that consists of senior HSE staff and an external business representative. Any unsuccessful appeals costs must be paid by the business, which can be a deterrent for many companies facing intervention fees.
Criticism of the scheme
Most would agree that businesses in breach of health and safety regulations of such a serious nature to warrant a notice should be made to foot the bill. However, as the judicial review highlighted, the HSE is effectively the “judge in their own cause” in the appeals process. This lack of independence could also potentially impact on how the HSE determines its priorities, with fees bolstering income.
Some also believe that it can harm the relationship between businesses and the HSE, who should be there to assist businesses in improving their health and safety. Finally, some question whether it is fair that the trigger for fees is the initial notice letter and the financial impact this may have on businesses, particularly SMEs.
The reason for the change
A spokesperson for the HSE said: “HSE has always kept the dispute process under review and following a recent application for a judicial review we believe the time is right to move to a dispute process which is completely independent of HSE.”