Fee For Intervention
The HSE has published guidance as to how it will operate the new Fee For Intervention (FFI), which will come into effect on 1 October 2012. The scheme puts a duty on the HSE to recover its costs for carrying out its regulatory functions from those found to be in material breach of health and safety law.
FFI applies to duty holders where the HSE is the enforcing authority. It will not apply to individuals or self-employed people who put themselves at risk. It also does not apply where there is already a costs regime in place, eg COMAH or a licence fee is already paid, eg licensable asbestos work.
Where there is a contravention of health and safety law that, in the opinion of the HSE Inspector, requires them to issue notice in writing of that opinion to the duty holder then there is a material breach and the HSE will seek to recover its costs.
A written notification must set out the law that the opinion relates to, the reason for the opinion and the fact that a fee is payable. Inspectors will use the enforcement management model, which is used by inspectors when making decisions about enforcement action, to assist them and this can be found on the HSE website.
The fee charged will be £124 an hour and will be applied to all work which is needed to identify the breach i.e. a visit to premises, taking of statements and all work to ensure that the breach is remedied. If an expert or specialist assistance is used then that will be charged in addition.
If there is more than one duty holder the work will be apportioned between the duty holders where it is attributable to one or other of them.
Invoices will be sent out detailing the period of time to which it relates, a breakdown of activities and time spent and the total fee payable. VAT will not be charged and the invoices will be required to be paid within 30 days. Invoices will be issued every two months, ie February, April, etc. The HSE will pursue any failure to pay in accordance with its own debt recovery procedure.
The HSE will only seek to recover costs up to the time when an information is laid at Court. Any subsequent prosecution costs will be recovered through the Courts (at the Court’s discretion). Repayments will be made if there is a prosecution but there is not a conviction or where the HSE serves an improvement or a prohibition notice and they are subsequently cancelled by an Employment Tribunal.
If a number of offences are charged and there are convictions on some charges but not others the HSE will repay any fees paid that wholly or exclusively relate to the offence charged that did not result in a conviction but fees attributed to the offence that did not result in a conviction that are equally attributable to the offences that did then no repayment would be made because that work would have carried out in any event.
A procedure has been set up for handling queries and disputed invoices. There is no fee payable for an initial enquiry but there will be a fee payable for handling disputes. Firstly the dispute would be reviewed by an HSE senior manager who is independent of the management chain responsible for the work that generated the invoice. If agreement is failed to be reached the dispute is considered by a panel of HSE staff and an independent representative.
The guidance does set out in more detail the enforcement management model and how the inspector uses it to make a decision as to whether there has been a breach of health and safety law.
The HSE has made it clear in presentations that its inspectors will not have “targets” to meet and the scheme has been set up simply to shift some of the cost of health and safety regulation from the public purse to businesses and organisations that break health and safety laws. As they point out organisations who do not break the law have nothing to fear. Only time will tell whether the scheme is successful, whether the administration at the HSE can cope with the inevitable queries and complaints which will be raised as the scheme beds down and whether it will bring in the kind of revenue that the Treasury wishes to see.