The Fee for Intervention Scheme (FFI) has now taken effect (since 1st October 2012). It places a duty on the Health and Safety Executive (HSE) to recover costs from dutyholders that are found to be in material breach of health and safety law. It will not apply to those dutyholders for whom the Local Authority is the enforcement body. The hourly fee of £124 (excluding VAT) will be charged for every hour that the HSE inspector has to spend investigating and identifying a breach and then providing advice to correct it. This could include all advice up to enforcement action, including prosecution.
Exemptions and disapplications
FFI does not apply to either self-employed people who only put themselves at risk, or employees. It also does not apply to those who have committed an offence under sections 36 & 37 of the Health and Safety at Work etc Act 1974 (e.g. directors). Where an employee and their employer are both in material breach, FFI only applies to the employer.
Both licensable work with asbestos and work activities involving biological agents at containment levels 1 to 4 are exempt.
HSE will not charge for work where another fee is already payable for some or all of that work, or for carrying out its functions under certain statutory instruments. Certain other circumstances for which the HSE will not recover its costs under FFI include the HSE’s work in relation to a prosecution after information is laid at court.
What is a material breach?
A material breach occurs when, in the opinion of the HSE inspector, there is or has been a contravention of health and safety law that requires them to provide written advice to the dutyholder.
Written notification must include the law that the inspector’s opinion relates to, the reasons for their opinion and notification that a fee is payable to the HSE. It should also be made clear which contraventions are material breaches.
The fee (£124 per hr) will be applied to each intervention where a material breach is identified and will include other associated work (writing letters, taking statements, preparing and serving improvement and prohibition notices). Where the breach is identified during a visit, costs for the whole visit are recoverable.
Third party involvement
The HSE may need to contract elements of work to the Health and Safety Laboratory (HSL) or to external third parties. Where work is contracted to the HSL or a third party, the actual cost to the HSE of the service will be recovered from the dutyholder. The rate will differ from the FFI hourly rate and could be more than £124 per hour.
Administrative & financial arrangements
The HSE is responsible for issuing invoices and, if needed, debt recovery. Invoices will contain the period of time the invoice relates to, a breakdown of the services for which costs can be recovered, time spent against each activity, total fee payable and a brief description of the work undertaken.
All initial enquiries about an invoice will be treated as a query for which no fee is payable. If dutyholders are not satisfied with the response to their query, they can formally dispute the invoice in writing to the HSE. The HSE will meet its costs in resolving queries, but will recover the costs of any dispute that is not upheld, based on the hourly rate of £124.
Appeals against enforcement notices will continue to be heard by employment tribunals.
Where the HSE instigates prosecution but there is no conviction, it will repay any fee paid that exclusively relates to the offence for which there has been no conviction. Similarly, where HSE serves improvement or prohibition notices, and one or more are successfully appealed by an employment tribunal, the HSE will repay costs or parts of costs recovered.
Examples of FFI in practice
The following have been given as examples of potential material breaches:
- Exposure to vibration in the use of heavy tools where it is reasonably practicable to eliminate or reduce the exposure
- Not ensuring workers are competent for work at height
- A failure to have in place inspection or maintenance system for ensuring lifting equipment remains safe to use
- Failures to provide adequate welfare facilities such as readily accessible working toilets and an adequate supply of drinking water.
- No access to competent in-house or external health and safety advice
- No assessment of risks to vulnerable people.