The HSE’s much-publicised cost-recovery scheme, Fee for Intervention (FFI), comes into force next week (1 October).
Under the Health and Safety (Fees) Regulations 2012, the HSE has a duty to charge employers who break the law for the costs associated with the regulator’s related inspection, investigation and enforcement activities.
The Regulations are designed to shift the cost of health and safety enforcement from the public purse to businesses that contravene health and safety laws. Under FFI, when an HSE inspector visits a business and identifies a “material breach” of health and safety law, the business will have to pay a fee based on a rate of £124 per hour.
The fee will be applied to each intervention where a material breach is identified and any other associated work. Where the material breach is identified during a visit, costs for the whole visit are recoverable, from as soon as the HSE inspector enters the site to when they leave. The fee will also cover all work to ensure that the breach is remedied, as well as any investigation or enforcement action up to the point where the HSE’s intervention has been concluded, or prosecution proceedings begin.
A “material breach” is defined as a contravention of health and safety law that requires an inspector to issue a written notice to the duty-holder. This may be notification of a contravention, an Improvement or Prohibition Notice, or a prosecution, and 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.
Businesses in compliance with their legal obligations will not have to pay a penny, according to the regulator, which hopes that FFI will act as a further incentive for duty-holders to operate within the law and help level the playing field between compliant and non-compliant employers.
HSE chief executive Geoffrey Podger said: “The most basic safety mistakes in the workplace can devastate lives and result in real costs to industry. It is right that those who fail to meet their legal obligations should pay HSE’s costs rather than the public purse having to do so.”
Legal experts have questioned aspects of the FFI scheme, during the lead-up to its statutory introduction. David Young, head of the health and safety team at Eversheds, said the different health and safety prosecution regimes in England and Scotland – where, in the latter, HSE legal costs are not retrievable through the courts – could have an impact on investigations of businesses north of the border.€
From reading the comments, I too am concerned about HSE being ‘backed into a corner’ with regards to ‘justifying’ charges. It isn’t good for industry & it isn’t good for the HSE.
The conspiracy theorist iin me wonders if this is all part of a privatisation run up!
Charges to SME’s just for a visit? Bernard’s comment may only be the first of many!
My fear is; stopping people getting hurt becomes secondary to generating a small revenue for the Gov’t and huge profit for the contractor!
Bob,
If you were aware of the issue with the water heater and actively chasing it up with the supplier, I seriously doubt that it would be deemed a “material breach” and would not be subject to FFI anyway.
Nice idea in principle but it will be a devil to resist the urge to charge for everything.
£124 per hour!!! FFS; I struggled to be competitive at £250 per day as a freelance. If that’s a reflection of the HSE’s running costs then it looks like there is some measure of punitive fee built into the structure, which is illegal under contract law. The amount could be challenged as not reflective of the HSE’s cost of doing business and therefore it is issuing a fine without due process.
Bob,
Spot on; I refer you my to comment off 11/10/12.
The amount of FFI charged by HSE region is ripe for a FOI request…
I’m all for improving H&S- nobody should go to work to get hurt, but I know all too well how bureaucrats think.
An associate in Scotland has been visited and some ‘housekeeping’ of some empty containers that had not been placed outside cost them £500.
To quote “Inspector was here for about three hours and gave us a good verbal report, very complimentary about the way we manage H&S, about staff and attitude to H&S but seemed to be under orders to find something to make it a chargeable visit.”
FFI requires no court case.
Any material breach will incur costs to remedy.
Accident investiagtions will incur cost regardless of prosecution.
And any FFI cost incured may not be acceptable to insurers as it is a penalty against the duty holder, not costs, as would be incured in court.
And in Scotland where no costs are charged against the duty holder, they will now incur costs via FFI.
I imagine fewer court cases as a result, as FFI will sting more than court possibly?
I can forsee KPI`s being applied by HSE.
As it is a considered management responce to validate any process application.
It will be interesting to see such application targeted against those who promote KPI.
He who plays by the sword dies by sword comes to mind?
Mind you, most SME`s have limited use of KPI, and this potential application of them is unlikely to gain favour amoungst them is it?
I had an issue with A Plant as a water heater was broke in a welfare unit, it took them a week to repair the heater.
Had the HSE been on site we would be forking out a fortune for this broken heater, yet A Plant are the supplier and maintainer?
Should we now repair it ourselves and pass on the cost of repair, or do you suppose HSE will chase A Plant for the FFI costs? I doubt it.
Or should we just absorb the cost without redress by the supplier?
Schedule 2 of CDM applies, which is a material breach?
This has a hint of KPI about it me thinks?
And given that HSE hold annual self appraisals to justify pay increases, you can imagine this scenario will repeat itself with increasing rapidity in due course?
I doubt that previously they would have incured a Notice, they would have been advised more than likely, at no cost to themselves.
The building of good relationships is not endorsed by this example of intervention.
I would suggest that you read the FFI guidance for Inspectors, a frightening read.
If an inspector has to refer to a specialist or the PI for confirmation if in fact a material breach has occured, the collective time establishing the breach is payable?
So the initial “competent person” failed to establish a material breach, this can then be determined by a third party at a later date, when in fact you may have corrcected the issue anyway, regardless?
Hardly an advisory service is it?
The cost of £124 per hour may seem steep, but when you consider your local solicitor will charge something in the region of £200 per hour for litigation work it’s not so bad.
I suspect that there will be fewer court cases as a result of FFI. In truth, the cost of going to court often outweighs the penalty when convicted. So, FFI is in effect an on the spot fine. There are far too many duty holders who breach the law and get away with nothing more than a slap on the wrist – not now!
This will force all firms to have at least a plan?
By producing a plan thats realistic and cost effective in comparison to the business – theres not a court in the land that will support a prosecution as long as a plan is in place. I dont think the HSE has thougt this through – the next few months will tell
HSE WILL ALWAYS FIND SOMETHING WRONG NOW THAT THEY WILL MAKE A MATERIAL GAIN. HOW LONG BEFORE THEY ARE PRIVATISED. MUCH PUBLISHISED, I DO NOT THINK SO.
Whilst I believe that the company that does not respect its employees sufficiently to take care of them should be made to pay (through the nose, ears and any other orifice) for inspection, I feel this proposed system is open to abuse.
The abuse would come from budget-holders within the HSE, by putting pressure on inspectors to respond in a stronger way. What would have been simply a “breach” would now become “significant” in all too many cases.