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December 11, 2015

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Lawyers surveyed: FFI and Sentencing guidelines

It has been three years since HSE implemented its Fee for Intervention (FFI) cost recovery scheme, but there has been a number of concerns over a lack of clarity, transparency and confidence in the guidelines plaguing HSE every step of the way. By Steffan Groch, partner and head of regulatory at DWF

The Health and Safety Lawyers Association recently conducted a survey of its members to gauge if and how their opinions have changed, and what the expectations are for the future. The results are clear – far from being in a position to advise businesses, more than ever HSE is simply discouraging those organisations from seeking regulatory advice for fear of being penalised.

Negative perceptions

HSE has, for a number of years now, been trying to transform its reputation, but it’s clear there’s a long road ahead. Given that HSE is frequently intended to act in an advisory capacity, there should be an expectation that the FFI scheme will make businesses more collaborative – and more likely to seek advice.

HSE itself even says that law-abiding businesses have no reason to fear – so why then do only 2 per cent of respondents say that interactions with HSE inspectors are more collaborative since the implementation of FFI? Undoubtedly, the unrestrained impartiality of the inspections is playing a part. Similarly, 50 per cent of respondents say their clients are less likely to ask for advice and, when asked whether FFI is likely to make businesses more compliant with health and safety law, 45 per cent of respondents said no. So what then, is the FFI scheme achieving? Is it a means of generating revenue for the HSE? At least 80 per cent of respondents think so.

Do businesses have faith in HSE’s queries and disputes process? Predictably, the answer is no. Only two thirds of respondents were confident in the independence and robustness of the process. Confidence, however, is predicated on knowledge – and 50 per cent of respondents think that duty holders are unclear on what constitutes a material breach.

What else did the survey reveal?

  • Around 40 per cent of respondents advise clients to query 50-100 per cent of FFI invoices.
  • Only 5 per cent of those advised are satisfied with HSE’s response to queries –around 58 per cent are neither satisfied nor unsatisfied and 36 per cent are unsatisfied.
  • Just over 50 per cent of respondents indicated that following a response to a query up to half their clients go on to appeal.
  • Around 20 per cent of respondents had successful appeals against FFI invoices – 80 per cent had not.

Revised Sentencing guidelines

The feedback from respondents on the overall perceptions of the new guidelines indicates that there will be more defendants electing for trial or sentencing in the Crown Court, with more cases being sent to the Crown Court overall. With higher fines looming, three quarters of respondents think that organisations will be more likely to defend prosecutions, and an overwhelming 90 per cent of respondents think we’ll see more lengthy and complicated sentencing hearings overall, or an increase in Newton inquiries. This will directly lead to delays and greater litigation costs.

Opinion was more divided on whether there is adequate guidance on the extent to which the corporate structures can be examined to determine the size of a fine. When it comes to advising organisations with a £10m-£50m turnover about fines, only about 30 per cent of respondents think that there is sufficient practical guidance, while about 40 per cent think not, and when sentencing organisations with a turnover in excess of  £50m, only 16 per cent of respondents think that there is sufficient practical guidance while about 60 per cent would disagree.

The future

At a time when the message from government is clear that growth needs to be fostered and red tape challenged, based upon the survey findings it is likely that the FFI system is not good for business, especially when member feedback has been that more often than not, employers are being found in material breach for risks they are trying hard to resolve.

If government is looking at ways to reduce red tape costs to business, it should probably take a look at FFI. The new sentencing guidelines may well have unintended consequences – more custodial sentences, more delays, more use of court time and higher litigation costs are obvious consequences when the stakes are raised.

 

Steffan Groch qualified as a solicitor in July 1995 and since that time, has advised companies, directors and managers in respect of a variety of health, safety and environment prosecutions brought by the Crown, Health and Safety Executive, Local Authorities and the Environment Agency. Steffan, in conjunction with his team, advises proactively on health and safety systems and procedures, with a particular emphasis on crisis management, corporate manslaughter and corporate governance.

 

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Hastam – Fees for Intervention: Part 2
6 years ago

[…] This is the second of several blogs on fees for intervention (FFI). A ‘material breach’ is the trigger for FFI cost recovery via a ‘Notification of Contravention’ (NoC). But what is a ‘material breach’? Where HSE issues an Improvement or Prohibition notice, a NoC is also issued for FFI purposes. But where HSE issue only a NoC (the majority of cases) I still don’t know. It’s almost impossible to tell with any confidence. HSE appears to be making it up as they go along. And does the concept and practice of FFI comply with HSE’s published enforcement practices? The… Read more »