From this autumn, the implementation of the controversial Fees for Intervention Scheme ("FFI") will mean that the HSE will be sending you a bill for that advice, in one of the most significant changes in how health and safety is regulated for some considerable time.
Despite the significance of this change, the fine detail of how the regime will operate remains unclear.
What is FFI?
Currently, the HSE can only recover its costs if a prosecution is successfully brought. FFI changes this and allows the HSE to recover its investigation costs (currently estimated at £43 million per annum) from businesses when a contravention – that is a failure to observe health and safety law requiring formal action – is discovered during a HSE inspection or investigation. FFI will allow the HSE to recover its costs even if no prosecution is brought as the scheme kicks in the moment a contravention found and a letter, e-mail or report recommending remedial action is sent.
The key features of the proposed regime include:
- Cost recovery will kick in from the first identified contravention of safety law, notified to the duty holder in writing and will be based upon the Inspector's hourly charge out rate of £124 per hour.
- The duty holder will continue to be charged for the HSE's time until the breach is remedied or until the HSE starts formal criminal proceedings. Invoices will be issued by the HSE every two months.
- A contravention will have occurred when- in the opinion of the HSE inspector, a material breach of safety law has occurred and the inspector judges this is serious enough for them to notify you in writing.
- There will be a dispute mechanism for duty holders to object to the amount charged by the HSE but details on how to challenge the decision of the inspector remain vague.
Whilst the fine detail of how the scheme as a whole is to be operated has yet to be finalised HSE, what is clear is that the introduction of FFI will alter the way in which businesses interact with the HSE.
What does FFI mean for you?
Whilst most organisations would support the principle that businesses in breach of the law should pick up the cost of necessary intervention, rather than the tax-payer, the potential cost to businesses could be substantial. Once FFI comes into force, a charge at £124 per hour will be made for time spent by the HSE following up such incidents where a contravention is considered- in the Inspector's opinion- to have been committed. The HSE has estimated that between 65-70% of inspections and investigations will be billed. With the HSE estimating that inspections which result in a letter will likely generate a bill of £750, for companies considered to be in breach, expensive times lie ahead.
Businesses also should be concerned about the effect of accepting the bill unquestioningly. Such acceptance might be seen as an admission of guilt in resulting criminal proceedings or personal injury claims. There is also the danger that a company's FFI charge history could be used as evidence of previous "bad character" in criminal prosecutions, potentially impacting on both the likelihood of a conviction and the severity of punishment following conviction.
Safety performance is routinely considered by customers during tenders and audits. Whilst "informal" recommendations by HSE previously would go undisclosed, you may find yourselves asked to disclose FFI contraventions to potential and existing customers. Being the subject of FFI could therefore affect your business' chances to win new work.
As a result of companies being charged every time the HSE finds a contravention, the financial incentives are now starting to add to the moral incentives to ensure health and safety compliance in the workplace. As the October due date approaches, pressure remains on the HSE to publish its guidance on how this controversial scheme will operate in practice.
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.
