HSE Expert Solicitors

HSE Investigations - Fee for Intervention (FFI) and how to challenge

Under The Health and Safety and Nuclear (Fees) Regulations 2022, duty holders, that the Health and Safety Executive (HSE) consider are in material breach of any health and safety law are liable for  HSE’s related costs of investigation. This is known as Fee for Intervention (FFI).  It only applies to HSE investigations.  It does not apply, for example, to investigations by local authorities into health and safety breaches.

When does FFI Apply? 

FFI enables HSE to recover its investigation costs from businesses whenever a 'material breach' is identified, irrespective of whether any formal enforcement action is taken as a result. The costs that can be recovered include site visits by inspectors, obtaining witness statements, reviewing documentation, preparing reports and instructing experts (including specialist inspectors).

A breach will be considered 'material' simply when, in the opinion of the HSE inspector, there has been a contravention of health and safety law that requires them to issue a notice in writing of that opinion to the duty holder.  This notice is known as a ‘Notification of Contravention’ (NoC).  

The inspector’s time under the FFI scheme is currently charged at £183 per hour. Invoices are issued every two months until the inspector’s investigation is concluded.  Note that an FFI invoice cannot be issued until a NoC has been sent to the duty holder.

Can You Challenge HSE’s Costs under FFI 

The answer is Yes.

FSW represented OCS Group (UK) Limited in its judicial review of FFI in 2017 which led to the current FFI dispute process.

A duty holder can challenge the finding of material breach and/or the amount claimed (ie the time claimed) under an FFI invoice.  The hourly rate cannot be challenged.

 A duty holder has 21 days from receipt of the invoice to write to the FFI team raising a ‘query’.  This will be determined by the inspector’s principal inspector (ie line manager).  If the query is not upheld then the duty holder can apply in writing (again to the FFI team) raising a ‘dispute’.  This must be done within 21 days of receipt of the determination of the query.  This will then be decided by a panel comprising and independent lawyer as chair and two independent members with experience of managing health and safety.

HSE will suspend the dispute process when it is related to an ongoing investigation or appeal against an enforcement notice

The Effect of a Notification of Contravention

It is not uncommon for an HSE inspector in their NoC to direct the duty holder to take certain action to remedy the material breach which in the inspector’s opinion has occurred.  However, there is no legal requirement for the duty holder to take action or respond to the NoC.

A NoC amounts to no more than a written confirmation of an inspector’s opinion that a duty holder is or has contravened one or more of the relevant health and safety statutory provisions, thereby making a fee payable. It does not impose any legal duty on the duty holder to do anything to remedy any contravention, nor is there any sanction for not doing so unless HSE takes further enforcement action eg serves an improvement notice.

Care should be taken when sending a written response to a NoC as that response may be relied upon by HSE as accepting the inspector’s opinion regarding material breach of health and safety law if a prosecution follows. 

Further failing to challenge a NoC might be mean that the NoC is used at a later date as proof of ‘bad character’.  In the case of HSE v Evergreen Construction UK Ltd [2023] ECWA Crim 237 the Court of Appeal held that NoCs (and enforcement notices) could amount to bad character evidence under section 98 of the Criminal Justice Act 2003 where the underlying facts that gave rise to the notices demonstrate “reprehensible conduct”.

The way in which a duty holder responds to a NoC should be seen in the context of the overall strategy of responding to an investigation by HSE.  Therefore it is vital that legal advice is sought.

Take Control Let Us Guide You

FSW can provide you with the expert help and experience to ensure the right decisions are made at the right time when dealing with an investigation and FFI.  This is critical because of the potential for HSE to seek to use NoCs and responses to them in future enforcement.