We reported in October 2011 on the HSE's proposals to significantly expand the scope of its cost recovery programme. In essence, the proposal was to give the HSE the power to recover its investigation and intervention costs from businesses found to have materially breached health and safety law.
The HSE will not recover any costs from a business which is inspected but found not to have contravened health and safety law or where any such contravention is sufficiently minor to be dealt with by a verbal warning.
After finding a material breach, the HSE will charge the business for the costs of its work investigating the breach, assisting the business in rectifying it and taking any enforcement action. The FFI regime only covers the investigatory phase. If, at the end of the investigation, the HSE decides to prosecute it will seek to recover its costs through the courts (in the event of successful prosecution) as it has done in the past.
HSE inspectors' time will be re-charged to offending businesses at a rate of £124 per hour (marginally less than the rate of £133 per hour envisaged by the consultation last year). This rate is subject to annual review. Where the HSE obtains input from third parties to its investigation, including the Health and Safety Laboratory, this will be recharged to the business at the cost price to the HSE.
The FFI regime will not impact on the existing cost recovery schemes that operate in respect of major hazard industries (e.g. offshore oil and gas) and sites covered by the Control of Major Accident Hazards Regulations 1999 (COMAH).
The HSE has published extensive guidance on the operation of FFI.