The HSE has launched a new procedure for challenging Fees for Intervention (“FFI”) bills after a consultation by the regulator was broadly backed by respondents. The FFI scheme enables the HSE to charge for some health and safety enforcement activities, whereby companies are liable for fees where a material breach of health and safety laws has occurred. A breach is considered material where the HSE Inspector judges it serious enough to notify the offending party in writing. Thereafter, the company receives a Notification of Contravention (NoC), which triggers an FFI bill based on the inspector’s time.
The consultation proposed to create an independent panel to assess written evidence when a dispute over a NoC arises.
The new process came into force on 1 September 2017. It requires the HSE to disclose information to complainants on how inspectors have determined the organisations have been in “material breach” of the law, which is the trigger for a NoC.
Most disputes will be decided by the panel by examining written evidence. However, it has the discretion to call a meeting with the HSE and duty holder in exceptional circumstances, for instance, when the panel considers the case cannot be decided on written information alone and with agreement of both parties.
A separate disputes process is to be established for cases where the FFI bills are small (£1,000 or less) or where there is no dispute as to the material breach but only the amount of the bill. The process involves consideration by a non-lawyer panel member based on papers alone. This should assist in reducing costs and burdens on businesses as no meeting will be required.
The new procedure is a result of an order by the High Court, after the HSE entered into a legal agreement with OCS Group UK to head off a judicial review. Since previously the disputes process comprised a panel of two senior HSE managers and an independent representative from a pool of trade and industry representatives, the regulator was criticised for being “prosecutor, judge and jury” when deciding on the legitimacy of a NoC. (For more information on this case please see our previous LawNow article at http://www.cms-lawnow.com/ealerts/2017/03/public-aye-1?cc_lang=en).
Respondents supported HSE’s plan to populate the adjudication panel with a lawyer and two others with practical experience of health and safety management, although doubts were voiced about the transparency and independence of the appointment process. As a result the HSE made clear that while they will choose the chair, candidates with the right level of expertise will be drawn from the Attorney General’s civil panel, which is a list of approved lawyers who have undertaken work for the government.
Respondents demanded that the HSE release the same information to duty holders that the inspector relied on to determine the existence of a material breach, to prevent the HSE bolstering their case by reinvestigating the incident. The HSE responded that it would include the information on the alleged contravention, how the HSE has formed its opinion, evidence upon which the opinion is based and the HSE’s response to issues raised by the duty holder when requesting the dispute.
Calls for a mechanism to recoup the costs associated with challenging FFI bills, should duty holders be successful in having their NoC overturned, was rejected by the regulator. The HSE justified their position by stating that they are legally required to recover fees in relation to FFI as per Regulation 22 of the Health and Safety and Nuclear (Fees) Regulations 2016, which does not make provisions for duty holders to recover costs.
The process is intended to provide greater clarity on what information the HSE will provide to businesses that seek to make appropriate representations to the dispute panel. To further assist duty holders to navigate the revised process, the HSE has also released new guidance and FFI webpages.