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March 7, 2012

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In court live: HSE prepares inspectors for fees for intervention

The HSE has just completed a two-week shadowing initiative to train inspectors in its new cost-recovery scheme, which begins next month.

A panel of lawyers revealed this and other details about the scheme, also known as ‘fees for intervention’ (FFI), to delegates during the ‘In court live’ session at IOSH12. Ron Reid, partner at Shoosmiths law firm, explained that the term “material breach” – which will be eligible for a fee once rectified to the HSE’s satisfaction –  has been changed to the term “contravention”.

Companies found to be at fault of a contravention will be charged at £124 per hour. The shadowing scheme, which ended last week, has therefore focused, in part, on training inspectors to accurately record the time they spend on interventions, so that a judgement over any subsequent fee can be accurately made.

Reid also explained that the HSE’s original plans to set up systems so that such FFI decisions can be challenged have changed. The Executive initially wanted to introduce a challenge process involving three stages, all of which would have been overseen by someone internal at the HSE. However, according to Reid, the Executive has now decided “not to be judge and jury”, so the third stage will involve the decision and the fee being scrutinised by a panel, including a front-line inspector, someone from the regulator’s policy and procurement department, and an independent individual.

James Maxwell-Scott, a barrister at Crown Office Chambers, raised the issue of how the cost-recovery scheme is going to work alongside enforcement notices and prosecutions. He explained that he would be concerned if a client that was facing possible prosecution had already admitted and repaid a fee for an HSE intervention, and suggested that any invoice should not be sent until after all enforcement action has been completed.

Although the HSE is not intending to charge for advice given by inspectors, the issue of whether the cost-recovery scheme could have an impact in this regard did come up. Paul Verrico, solicitor-advocate at Eversheds, told delegates that the HSE had told him that it is not recruiting any extra staff to administer the scheme, and this alone would mean that the chances of getting advice from busier inspectors, would, potentially, diminish. This view is not, however, held by the HSE, whose chief executive, Geoffrey Podger, described FFI as “a good way to provide us with more resources”, when he addressed the IOSH conference in the opening plenary session.

Asked about how the role of consultants might fit into the scheme’s operation, Maxwell-Scott highlighted the potential problem of a company that has followed the advice of an external consultant and paid them for that advice, but is then asked to pay a further fee by the HSE, if in its view, the advice the company has followed amounts to a “contravention”.

Liability and insurance issues regarding FFI may also have to be considered and negotiated into consultants’ contracts, he said. Verrico added that a factor that might arise, here, is the scope of the health and safety consultant’s involvement – for example, it might be unreasonable to expect a consultant who is only contracted to provide services for a company for, say, two hours a week, to foresee every health and safety risk that their client encounters.

Replying to a question from the floor, Verrico also suggested that the FFI scheme might act as an added incentive for inspectors to respond to calls they receive from employees who blow the whistle on their employer.

Summing up, Maxwell-Scott described the FFI scheme as one of the most interesting legislative areas to watch. He pointed out that there is a pyramid of health and safety enforcement, and that with around 1000 prosecutions a year and 15,000 enforcement notices a year, the number of formal FFI letters sent to duty-holders can therefore be expected to be even higher.

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