Given the possibility that the Health and Safety Executive (HSE) may consider using the payment of its Fees for Intervention (FFI) invoices as evidence of a sign of guilt in subsequent proceedings, the duty holder might wish to consider trying to protect their position in the following ways:
- Dispute the invoice using the FFI disputes procedure. All queries and disputes about an FFI invoice will initially be treated as a query. Anyone receiving an FFI invoice has 21 days from receipt to query whether there was a material breach or that the time for which the fee is charged is incorrect. If the subsequent HSE response is considered to be unsatisfactory then the appeals process must be commenced within ten working days of the initial response to the query.
The process operates in two distinct stages. A level 1 dispute results in the invoice being reviewed by a HSE senior manager who is independent of the management chain that generated the invoice. The HSE's response must be sent within 15 working days of receipt of the dispute. If this does not resolve the issue then the matter is escalated to a level 2 dispute where the matter is considered by a panel of HSE staff and an independent representative.
If at the end of this process the challenge is not upheld then the HSE will seek to recover the costs of dealing with the dispute at levels 1 and 2 using the FFI rate of £124 per hour. Where the challenge is not upheld and a decision is made to pay the invoice, then consideration should be given to steps (2) or (3) below;
- Pay the invoice to acknowledge that work has been undertaken by the HSE under the FFI scheme but include a clear covering statement that such payment should not be taken as an admission of there having been any material breach;
- Settle the FFI invoice in full but only once the HSE has agreed in writing not to use the fact of the payment as evidence of any material breach in the event that any future criminal proceedings arise;
- Don't pay the invoice. The risk then is that the HSE may begin civil debt recovery proceedings. However, that risk may be seen as small because the HSE might be reluctant to issue civil proceedings before it has made a decision about whether to bring a criminal prosecution. To proceed straight to civil proceedings to recover an FFI invoice might result in the issues having to be tried. The HSE may lose making a criminal case more difficult.