In deciding whether Fee for Intervention (FFI) will apply, the HSE will adopt the same principles as it does to any enforcement decision, explained HSE Principal Inspector Harvey Wild, as he took delegates at the SHP Legal Arena on a whistle-stop tour of the new cost-recovery regime.
First reminding the audience that the scheme has been up and running since October last year, inspector Wild stressed that compliant businesses will not pay any fee for inspectors’ time and that costs will be recovered for a material breach at £124 an hour.
In England and Wales, the costs for investigations and prosecutions are recoverable up to the point at which informations are laid. In Scotland, costs are recoverable up until the file is handed over to the Procurator Fiscal.
Invoices are sent out every two months and companies have 30 days in which to pay them. A queries and disputes process has also been set up. No costs apply to queries, but should the matter develop into a dispute then costs would be recoverable if it is not found in the company’s favour.
Harvey then went on to remind delegates of the definition of a material breach, which occurs “when, in the opinion of the HSE inspector, there is or was a contravention of health and safety law requiring them to issue a notice in writing of that opinion to the duty-holder”. In so doing, the inspector will explain how they came to their opinion, what law has been breached and what measures are necessary to bring about compliance.
Referring to an HSE guidance document that provides a number of examples of where breaches might occur and covers a number of exclusions of FFI, inspector Wild stressed that, among these, FFI will not occur where there are existing permissioning regimes in place, eg. COMAH sites. Low-risk workplaces regulated by local authorities will also be exempt, and the scheme will also not apply to non-HSWA legislation, such as the Regulatory Reform (Fire Safety) Order.
Taking the audience through the HSE’s approach to enforcement, inspector Wild underlined that there is no real change, and FFI decisions will be based on the same criteria as the regulator’s Enforcement Management Model (EMM).
The first two steps under the EMM is to establish the actual risk and what compliance looks like. An inspector will then identify the risk gap. In deciding what enforcement action to take, the inspector will also consider factors such as the employer’s current and previous approach to health and safety, as well as whether it is in the public interest to take action.
Using the example of an unguarded drilling machine, inspector Wild explained that in identifying the risk gap, the Executive would consider what harm could arise and how credible it is that someone would have a RIDDOR-reportable injury. Other factors to consider would be how many people might be affected and whether the risk is something covered by standards.
