From 1 October 2012 the HSE has had a duty to recover the costs of undertaking its regulatory functions from those found to be in material breach of health and safety regulations.

The HSE will charge on an hourly basis for its work in dealing with material breaches of duties under the HSWA and regulations made under it. For the time being, businesses regulated by local authorities, rather than the HSE, will not be liable for this charge.

A material breach is when the HSE inspector considers that there has been a contravention of health and safety law that requires a letter or enforcement notice to be sent out by him. When prosecution follows the HSE has always sought to recover its investigation costs in any event and the change does not impact upon prosecuted cases.

The HSE has issued examples of what might be considered a material breach. This includes:

  • Health risk failures which might lead to exposure to harmful substances such as asbestos, fumes and chemicals, or harmful noise or vibration
  • Safety risks where there is potential for traumatic injury e.g. contact with moving machinery, falls from height, explosions, heavy lifting or contact with moving vehicles
  • Welfare breaches, for example inadequate provision of washing and toilet facilities
  • Management of health and safety risks such as ineffective health and safety management or assessment and control of risks, or absence of advice, information and training to employees

The hourly rate which the HSE will claim in bi-monthly invoices, is £124 for the inspector's time in identifying the breach, any further investigations and helping to put the breach right as well as taking enforcement action up until any prosecution begins. FFI will continue to accrue until the issues have been corrected.

There are some exceptions - such as when the breach identified is by an employee only and the employer is compliant.

Invoices can be disputed on the grounds that there was no contravention or the amount charged is incorrect. Disputes will be handled in two tiers - firstly an issue raised will be considered by a senior HSE manager independent of the FFI team. The second level of review will be by HSE staff with an independent representative.

At the moment FFI are limited to those regulated by the HSE but the local authorities are looking closely at this and some have already publicly expressed the view that they would like to see the scheme extended to enable local authorities to recover these types of fees for their advisory input too.