The new Fee For Intervention regime
If you’ve been in the unfortunate position of being investigated by the HSE, you’ll doubtless be aware of the Fee For Intervention (FFI) scheme.
Introduced in 2012 to let the HSE recover their investigation costs from a business that had been found to have breached health and safety law, it currently stands at £129 per hour. It goes without saying that the more complex and involved a case is, the greater the cost to the company under investigation.
If it’s found that a business has breached health and safety legislation and that breach has resulted in a Notice of Contravention, the HSE will issue an invoice covering the time that it
took them to:
investigate the situation;
identify the breach;
pinpoint the action required to remedy the breach.
How the dispute process works
When a business gets a FFI invoice, they have thirty days in which to pay it. It may be that they disagree with one or other aspects of the invoice; that may be the amount, whether the work that was carried out was proportionate to the alleged breach or the amount of information provided which justifies the HSE Inspector’s belief there has been any breach.
If there is a dispute, it needs to be submitted in writing to the review panel.
The review panel
Until 1st September 2017, the panel set up to review any disputes with the issue of a FFI invoice consisted of two HSE members and one independent member. However, this often gave rise to the accusation that the HSE was acting as both prosecutor and judge, tilting the scales against the business which had disputed the invoice in the first place. The lack of a right of appeal was also a source of concern.
As of 1st September, the make-up of the review panel was changed so that it now consists of two members who have practical experience of health and safety management, and an independent lawyer who chairs the review. This means that the review panel will be fully independent of the HSE.
In addition, HSE Inspectors will now have to give businesses full details of the breach that they say has taken place and the scope of the investigation the inspector believes is necessary to uncover the facts about the breach. With that information to hand, a business that has been accused of a breach will stand a much better chance of disputing the invoice on the grounds of either its conclusion or the costs that have been incurred.
What the panel does
The panel will look into all aspects of the disputed invoice before it makes its final decision. Amongst other things, it will consider whether:
the recovery of costs is legal;
the time spent investigating the breach is reasonable;
the time that the HSE investigator spent looking into the breach has been accounted for properly.
If a dispute is not upheld by the review panel, the business will have to pay not only the original invoice but any reasonable costs that have been incurred by the panel in the course of the review; this could include a fee for the lawyer chairing the panel and travelling costs for the other two members. This could well be at the rate of £129 per hour.
When the invoice is disputed, the process will be suspended until the dispute is resolved.
Prior to the new system, businesses who were faced with an FFI invoice tended to pay it. Only three percent of invoices issued were ever challenged. Those disputed were even fewer.
However, with the change in sentencing guidelines in 2016, which took into account previous breaches when considering the size of fine or custodial sentence, this approach could backfire against businesses who find themselves accused of another breach. Having paid the invoice rather than disputing it could be seen as evidence of bad health and safety performance, even if that were not the case in reality.