09/03/2016
Fee for Intervention, also referred to as FFI, was implemented on 1st October 2012 and is the Health and Safety Executive’s (HSE) recovery scheme. Under The Health and Safety (Fees) Regulations 2012, the HSE has a duty to recover the cost of its investigations from organisations found to be in material breach of health and safety law.
The cost recovery regime was implemented in response to the 35% budget cut delivered by the Government in 2011. And the implementation of the scheme has not been without controversy as we shall see.
Who Is Subject to Fee For Intervention?
In order for an FFI to apply, the breach in question must be either of a general duty under the Health and Safety at Work Act 1974 or Regulations made under the Act.
FFI applies to anyone who owes a duty under health and safety legislation where the HSE is the enforcing authority and includes:
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Employers
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Self-employed people who put others at risk
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Public and limited companies
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General, limited and limited liability partnerships
FFI does not apply to licensable work with asbestos by those who hold a licence under the Control of Asbestos Regulations 2012 or to work activities involving biological agents at containment levels one to four.
What is a Material Breach?
A material breach is when, in the opinion of the HSE Inspector, there is or has been a contravention of health and safety law that requires them to issue a notice in writing of that opinion to the dutyholder.
Written notification from an HSE inspector may be by a notification of contravention, an improvement or prohibition notice, or a prosecution and must include the following information:
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The law that the inspector’s opinion relates to;
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The reasons for their opinion; and
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Notification that a fee is payable to HSE
How Much is the Fee?
The total fee is based on an hourly rate of £124 per hour. Inspectors will invoice for the time they have spent identifying the breach, advising on putting it right, investigating, and taking enforcement action. Included is all time spent on carrying out visits, all time on the site during which the material breach was identified, the writing of letters, notices, reports, taking statements and getting specialist reports for complex issues.
Chargeable time runs from the start of the visit when the material breach is identified. Payment is due within 30 days and is treated as a civil debt if not paid.
According to HSE’s Small Business Trade Association Forum, Hot topics Fact Sheet 10, 3 December 2015, the average Fee For Intervention invoice is now £755.11 with the largest invoice so far being £201,150.14
Richard Judge, the CEO of HSE, made it very clear in an interview conducted in 2015 that FFI was not to be seen as a fee generating mechanism but as an enforcement tool, in the same way that in environmental enforcement the ‘polluter pays’.
The Department of Work and Pensions appointed Mr Martin Temple, Chair of EEF, to undertake the Triennial Review of HSE. In his report dated 9 January 2014 he said of FFI:
“...I am very concerned at the strength of feeling from stakeholders that FFI damages HSE’s reputation for acting impartially and independently. I comment on it here because of the impact it appears to be having on HSE’s reputation for independence and its integrity as a regulator” (para 3.120)
He went on to say:
“[It] is a dangerous model which links, directly or indirectly, the funding of the regulator to its income from ‘fines’” (para 3.120)
Impact of Fee For Intervention
There are concerns about how a finding of a ‘material breach’ might affect a dutyholder in the future if left unchallenged. Mr Peter McNaught, Chief Legal Adviser to HSE, in an interview with 2 Hare Court Chambers published in March 2013 would not rule out notifications of contravention under FFI being used as evidence of guilty or previous warning or bad character in future criminal proceedings. It may also impact on a company’s ability to tender for new work: there is an increasing trend for pre qualification questionnaires (PQQs) to ask not only if the company has had enforcement action taken against it in the last three years but also if it has had a findings of material breach under FFI
In next week’s article, we will explain the procedure for successfully challenging Fee For Intervention.
Fisher Scoggins Waters are a London based law firm who are experts in construction, manufacturing and engineering matters. We provide tailored advice and emergency response for health and safety matters occurring in these industries. If you would like to discuss any points raised in this article, please phone us on 0207 993 6960.