Summary
In an effort to deter material breaches of health and safety law, the Government has introduced the Fee for Intervention (FFI) scheme under the Health and Safety (Fees) Regulations 2012. These regulations put a duty on the Health and Safety Executive (HSE) to recover the costs of carrying out its regulatory functions in relation to material breaches.
The scheme shifts some of the cost of health and safety regulation from the taxpayer, to duty holders that break health and safety law. Duty holders include employers, self-employed people who put people (including employees or members of the public) at risk, as well individuals acting in other capacities such as partners.
Certain duty holders will be exempt from the FFI scheme, such as self employed people who don't put others at risk, or where duty holders are already paying fees under other arrangements.
What is a material breach and when are costs recoverable?
A material breach arises when, in the opinion of the inspector, there has been a breach of health and safety law which requires them to issue a notice in writing.
Recovery of costs at hourly rate of £124 will begin from the first visit during which the material breach is identified through to the point that the breach is rectified, as well as any investigations or enforcement action up to the point where the HSE's work is concluded or a prosecution is commenced. Recoverable costs also include associated work such as written notices/reports, taking statements, research, recording information, assessing findings, reviewing investigations and follow up work to ensure compliance.
Where non-HSE professionals or persons from the Health and Safety Laboratory offer support, the actual costs incurred for this shall be payable by the duty holder. Costs for serious incident investigations may run into many thousands of pounds.
Querying or disputing the costs
If the duty holder disagrees with an invoice for costs they can raise a query within 21 days. In the event that the duty holder disagrees with the HSE's reply to their query, they then have a further 21 days to raise a dispute. The duty holder will have to pay a fee as well as the hourly rate of £124 for the HSE's time spent handling the dispute. The HSE will recover its costs for any dispute that is not upheld. If the duty holder is not satisfied with the HSE's response, they can write to the HSE setting out their reasons and a panel of HSE staff and an independent representative will consider the dispute.
Impact of the regulations
It was the HSE's intention to review the FFI scheme after the first 12 months of its operation, however this review is yet to be published and the effectiveness of the scheme as a deterrent is not yet known.
What we do know for certain is that any duty holders in receipt of notices from the HSE will feel the financial impact of the FFI scheme and therefore it is increasingly important for companies to fully understand and implement health and safety measures into their business.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
