Fee for Intervention – The Essentials Part Two Challenging an FFI Invoice

14/03/2016

In last week’s post we explained what Fee for Intervention (FFI) is, the controversy surrounding it and how it can affect businesses (read the post here).  

It is important that businesses check the notification of contravention sent by HSE setting out the alleged material breach to see whether they agree there has been a breach and if they agree with HSE about how the risk should be managed.

Martin Temple in his January 2014 report of his Triennial Review of HSE wrote:

“......health and safety legislation is goal setting and risk based.  This means that the discussion that takes place between the regulator and the regulated about what is reasonably practicable is vital.” (para 3.16)

Sadly this discussion does not always take place.

Even if the dutyholder agrees there has been a material breach then the FFI invoice needs to be checked to ensure the amount claimed is justified.   

If the business disagrees with HSE about the alleged breach of health and safety law and/or the amount charged in the invoice then there is a process for challenging.

The Procedure for Challenging Fee For Intervention

There are strict time limits for challenging FFI.  There is a two stage process: (1) Query; and (2) Dispute.

Query

Time runs not from the receipt of the notification of contravention but from receipt of the invoice which will be received later.  Within 21 days the dutyholder must write to the FFI Team saying setting out why the invoice is being challenged and the grounds for the challenge.  The query will usually be determined by the inspector’s line manager.  No charge will be made for the query stage.

If you plan to dispute an Fee For Intervention invoice for reasons such as you, disagree that your organisation committed a material breach, or you dispute the amount of time spent on the investigation as stated in the invoice, then in the first instance your dispute will be treated as a query with no charge attached.

Dispute

If the query is unsuccessful a dispute must be raised in writing to the FFI Team within 21 days of the date of the decision.  

In the notice of dispute you should include the following information:

• Invoice number – included on the HSE invoice;        

• Customer Reference– included on the HSE invoice;        

• Name of the organisation to which the invoice was sent;         

• The name of the individual disputing the invoice;       

• The specific reason(s) for disputing the invoice (see Paragraph 16 and Annex 1); and        

• Confirmation of whether the dispute relates to all or only part of the invoice.

If you are only disputing part of the invoice, you must state this clearly in your notice and pay the undisputed part of the invoice within thirty days from the date of the invoice or no later than ten days after you have been notified of the outcome of your query if that is later.

Disputes are considered by a Disputes Panel, comprising of HSE staff (senior managers who were in no way involved in the issuing of the disputed invoice) and an independent representative drawn from a pool of industry and Trade Union representatives.

The Panel will review the case to ascertain whether or not the amount owing on the invoice should be upheld, varied or cancelled.

The decision of the Panel will be sent to you within 15 days of the decision being made.

If the dispute is not upheld, you must pay the invoice within ten working days.  You will then receive an additional invoice regarding HSE’s costs of dealing with the dispute charged at £124 per hour.

If HSE in addition serves an improvement or prohibition notice and this is successfully challenged or if HSE prosecutes and the dutyholder is acquitted then any money paid under the FFI regime will be refunded.

Future Impact

Often businesses take the view that it is easier to pay the invoice rather than challenge it.  However it must be remembered that the first invoice received may not be the only one and there may be further charges later.  Also, as explained last week, HSE’s finding may have an impact on later proceedings and may also adversely affect your business’ ability to tender for work.  Therefore businesses are well advised to seek specialist legal advice.

In next week’s article, we will be discussing the information you can gather about an HSE’s investigation from the Fee For Intervention notice.