Subject to Parliament approving the necessary change in legislation the Fee for Intervention (FFI) scheme will come into force on 1 October 2012. The stated aim of the scheme is to impose a duty on HSE to recover its costs for carrying out its regulatory functions from those found to be in material breach of health and safety law. Guidance has been issued and can be accessed here. For any employer subject to inspection by the HSE this guidance is invaluable reading.
As a shorter guide here are our top ten things that you should know about FFI:
1. Start date
FFI will not apply to interventions started before 1 October 2012
2. Enforcement activities
FFI will not apply to enforcement activities other than those of HSE. It will not apply to enforcement carried out by Local Authorities, the Police, the Maritime and Coastguard Agency, Civil Aviation Authority or Office of Rail Regulation.
3. Who it will apply to?
FFI will apply to Crown and public bodies.
4. Who won't it apply to?
FFI will not apply to self employed people who only put themselves at risk and fees will not be imposed upon employees.
5. When will fees stop accruing?
FFI will not include work in relation to a prosecution. In Scotland fees will stop accruing at the point that a report is submitted to the Procurator Fiscal seeking a decision as to whether or not there is to be a prosecution. In England and Wales the fees stop accruing after an information is laid at court. It is a noteable distinction that in Scotland no prosecution costs can be recovered from the accused but costs can be recovered at the court’s discretion in England and Wales. With regard to Crown bodies fees will stop accruing when HSE formally notifies the crown body that it would have started a prosecution, had it not been a Crown Body.
6. What constitutes a breach?
A material breach has taken place 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 notice in writing of that opinion to a duty holder. Written notification can be notice in the form of a formal letter setting out the breach, an improvement or prohibition notice or a prosecution. The notice must set out the law that the Inspector’s opinion relates to, the reason for the opinion and give notice that a fee is payable.
7. Fee payable
The fee payable by a duty holder will be £124 per hour (except where the Health and Safety Laboratory or another third party is also involved in which case that party’s actual costs will be recovered). The fee will be charged in respect of all work carried out to identify the material breach and all work to ensure that it is remedied. It is likely to include the initial visit or inspection, writing letters and reports, drafting enforcement notices, follow up work to ensure compliance, taking statements and other related tasks.
8. Duty holders
Where more than one duty holder is responsible for a material breach the Inspector will apportion the fee to the extent that the work is reasonably attributable to each duty holder.
9. Disputing invoices
Invoices can be disputed and any dispute will be considered by an HSE Senior Manager who is independent of the management chain responsible for generating the invoice. Disputes not resolved at that level will go before a panel of HSE staff sitting along with an independent representative. It is very important to note that if a dispute is not upheld then HSE are entitled to recover the full amount showing on the invoice plus the additional cost of resolving the dispute. No costs are met by the duty holder in respect of a dispute that is upheld.
10. Fee repayments
Fees will be repaid if an Improvement or Prohibition Notice is cancelled by an Employment Tribunal after an appeal.