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February 6, 2013

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Fee for intervention – Money-back guarantee

Fee for Intervention – the HSE’s controversial cost-recovery programme – will surely generate many more headlines and fierce debate during 2013. As well as contemplating the typical health and safety issues likely to attract enforcement action of this nature, Paul Verrico and Claire Lamont assess  the scheme in its first few months of operation.

Since 1 October last year, the HSE has been able to charge for its inspectors’ time at £124 an hour (blended rate) under the Fee for Intervention (FFI) cost-recovery scheme. 

The Health and Safety (Fees) Regulations 2012, which underpin the scheme, do not simply give HSE inspectors an option to recover costs where they decide it is just to do so; they go as far as to impose a duty on the Executive to recover costs incurred in carrying out its regulatory functions where there has been a material breach of health and safety law. As HSE inspections can and do last for many months, or even years, it has been determined that invoices will be issued every two months (January, March, May, July, September and November), within 30 days of the end of the period. Invoices will contain a breakdown of the time spent by each member of staff, setting out what they did, and how much time was spent. VAT is not payable on FFI.

FFI is charged when, in the opinion of an HSE inspector, there has been a material breach. Helpfully, the regulator’s website sets out nine ‘basic health and safety mistakes crippling British industry’1 – areas which, it can be adduced, are most likely to result in a ‘material breach’ being identified. While there has been much anxiety and debate about what will constitute a material breach, the HSE is suggesting that there is no need for concern because there are no new tests with which inspectors need to familiarise themselves in this regard.

A material breach is where the contravention of health and safety law is such that the HSE inspector is required to issue the duty-holder with a written notice confirming the breach and setting out what law, in his/her opinion, has been breached and why this opinion is held. This is no different to the Executive’s obligations before FFI came in, apart from the fact that the letter is also to confirm that the FFI regime will apply. This may include an Improvement or Prohibition Notice, or, in extreme cases, a notice of prosecution.

Just as they did before the scheme was implemented, inspectors will use the Enforcement Management Model and Enforcement Policy Statement to reach their decisions. As such, it is intended that, under the FFI regime, the circumstances in which a material breach is identified and a written notification of this is sent out remain unchanged. 
In our experience, the duty-holders who have already received letters stating that they will be charged under the FFI scheme have accepted that there is evidence of a material breach. This is not surprising as often, when new legislation is introduced, the regulator or enforcing body begins implementing sanctions on a cautious basis to establish the parameters of its new powers (e.g. the first prosecutions under the Corporate Manslaughter Act, where the convictions have been ‘slam dunks’ without testing the ambit of the legislation). It is thought that, as time progresses, there will be a gradual increase in the number of FFI letters sent out, as HSE inspectors grow in confidence and experience.

Likely FFI hotspots

Poorly maintained or misused ladders
We often see examples of ladders being misused as a place of work rather than as a method of access. In one recent fatality case, a worker was carrying a wheelbarrow down a ladder when he slipped and fell. Employers need to anticipate human nature and ensure that all available tools are properly maintained and that any demarcated areas are explained.

Dangerous work at height
We routinely receive calls from clients following near-misses, incidents and fatalities as a result of falls from height. In the last year, these have included unsafe scaffolds, inadequately planned roofing operations, and improper access methods. Inspectors may have driven past a building site, noted a flaw and proceeded with enforcement action.

The HSE prosecution database is full of examples of dangerous work at height resulting in prosecutions; the Lion Steel corporate manslaughter case is but one example.2 Clearly, duty-holders need to think seriously about proper safeguards, such as edge protection, harnesses and safety nets, as the HSE will almost certainly issue FFI notices in cases where such precautions are missing, regardless of whether or not an incident has occurred. One of our clients told us recently of an FFI incident in which an enforcement notice was served because a section of scaffolding was missing a handrail; this is exactly the type of issue that the regime is designed to address.

Guarding
PUWER failures have been the largest source of our defence work in the last calendar year. We have acted in several fatality cases and many serious non-fatal cases involving some quite horrific injuries, following failure to properly guard. One area seen time and again is when new machinery is purchased from the EU; the machinery may be CE-marked but, in reality, it may still be inadequately guarded.

The Executive estimates that UK industry could save 250,000 lost-time days if guards were properly fitted.1 This issue, particularly in the manufacturing and estates-management sectors, is likely to be a key source of FFI action.

Badly-organised transport
Poor pedestrian and machine segregation is another area common in many cases that cross the desks of health and safety lawyers. Issues range from forklift trucks in poorly-lit warehouses, which do not have clearly demarcated areas of egress and access, through to loading and unloading of lorries in sheds where custom and practice result in a departure from written instructions.

Given that the outcome of such cases is often fatal, the HSE’s FFI work will likely be pre-incident, with a focus on transport plans and proper training programmes for operators of machinery and lorry drivers. Induction records could be another area of scrutiny.

Asbestos
Despite asbestos legislation prohibiting the use of asbestos-containing materials since 2000, more than half a million public buildings still contain the hazardous substance.

Significant exposure will likely continue to result in prosecution but the HSE will be interested in notification being given at the correct time, as well as proper registers and good communications with contractors. It may be that FFI is used in situations where low levels of exposure are reported.

Hand-arm vibrating tools
Few hand-arm vibration cases have been prosecuted to date. Nevertheless, the HSE estimates up to one million workers are exposed to vibrating tools, which could detrimentally affect their health.

Employers must comply with specific requirements under the Control of Vibration at Work Regulations 2005 in situations where exposure is at action levels. It may be that FFI is well suited to situations in which employers are not fully complying with these Regulations, with the potential that advice given to duty-holders on occupational-health surveillance could form a key area of FFI interaction.
 
How has FFI been implemented so far?

The regime has been in place for a few months now and some organisations have received correspondence notifying them they will be charged under the FFI scheme.3 While it is still too early to evaluate properly the impact of FFI, nothing we have heard to date has come as a surprise, and so it appears that the guidance and other information published in advance of the regime’s implementation was both accurate and helpful in managing expectations. 

The first bulk dispatch of invoices were due to be sent out last month. Therefore, it is unclear (at the time of writing) exactly how the charges are being calculated and applied, and, perhaps most importantly, how the charges will be received. For those organisations that have received a letter confirming they have committed a material breach of the legislation, most will have to wait until the invoice is received to discover the extent of the charges they are facing. 

Since October 2012, there has been a growing trend for the HSE, following receipt of a RIDDOR report, to request the duty-holder’s internal investigation report as well. On receipt of this report, the regulator then decides whether a site visit should be the natural progression.

This interrogation of RIDDOR data is, again, not unexpected, but serves as a salutary reminder to employers to ensure that whoever writes the internal investigation report is trained in accident investigation and understands the potential consequences of committing unsubstantiated hypotheses to paper, or of using a report as a vehicle to air frustration. Using the report to reflect in such a way may highlight a training gap and alert the authorities to the potential for enforcement action under the FFI regime.

References
1    The basic health and safety mistakes crippling British industry – www.hse.gov.uk/fee-for-intervention/basic-safety-mistakes/index.htm
2    www.shponline.co.uk/incourt-content/full/biggest-fine-yet-in-third-corporate-manslaughter-conviction
3    According to a Freedom of Information request from DWF solicitors, the HSE recorded FFI time for 903 premises up to 30 November.

Paul Verrico is a principal associate and Claire Lamont is an associate in the Eversheds Health and Safety team.

 

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Kenpatrick

THe HSE must find it very disheartening that after all their efforts and the experience of history that “exposure to asbestos” is one of the nine basic mistakes that is crippling British industry.