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February 26, 2013

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IOSH 2013 – Material breaches found in up to a third of inspections since FFI

Between a quarter and a third of inspections carried out by the HSE since its cost-recovery scheme came into force in October last year found a material breach of health and safety law, resulting in a fee for intervention (FFI) on the duty-holders involved.

This was revealed by the regulator’s head of field operations, David Ashton, in his presentation on the new scheme to delegates at the IOSH Conference this afternoon (26 February). The first run of invoices, which was initiated last month, has so far seen 1400 bills sent out to errant duty-holders, meaning, said Ashton, “the money is really coming in”.

But he was keen to emphasise that FFI is not only – or even mainly – about the money. It has, he said, myriad other advantages for the improvement of health and safety management and compliance.

He explained: “The 35-per-cent cut to our budget announced in 2010 will take us up to the General Election in 2014, so resources are a significant element of the cost-recovery scheme.  If we ask, what is best for our customers, the answer is: an adequately resourced regulator. Thanks to FFI, we should be able to start recruiting new inspectors soon.”

Mr Ashton also highlighted what he called “the multiplying effect” of the scheme: “From the cases we take and the information we publish, companies realise that they really don’t want to experience ‘the knock’ from the HSE, followed by a bill. I don’t want to call it a deterrent – I see it as more of a spur to good behaviour, and this is a definite advantage of the scheme.”

Briefly explaining how the scheme works, Mr Ashton said that for companies that comply with the law in all significant respects, the HSE’s advice is free, while those who don’t will be charged for its time to put things right.

He reassured delegates: “We won’t go looking for breaches, easy targets, or deep pockets. And there are no financial targets for inspectors. We won’t change what we do, which is look at sites, see what’s wrong, assess the significance of that and act accordingly. If there is a material breach, it will trigger a bill for our time.”

The FFI procedure, once it has been trigged by determining a material breach – which, Mr Ashton emphasised several times, is clearly explained in the myriad guidance on FFI available on the HSE’s website – works as follows.

The company will get a formal notice of contravention, which will include details of what is wrong (i.e the contravention itself), what action is required, and information about FFI. This covers the entirety of the inspection process and the time necessary afterwards to report on that work – all of which is charged at £124 per hour.

Mr Ashton explained: “FFI may apply where an enforcement notice or prosecution is not appropriate, so they are not triggers for FFI. But FFI almost always applies where formal enforcement action is taken in relation to a material breach.”

Invoices are sent after two months, and the duty-holder has 30 days to pay. There is a formal disputes and queries mechanism, though Mr Ashton revealed that of the 1400 invoices sent so far, the number of appeals has been “in single figures”.

He also touched on the impact of the scheme on his staff – the HSE field inspectors who must implement it on the front line. “It has been difficult,” he said. “Some have said they didn’t join the HSE to be a revenue collector but I ask them to turn around and look at what is best for our customers, and that is an adequately-resourced regulator.”

He argued that FFI is actually a spur to consistency and efficiency and that the pressure it puts on HSE staff to do their job well is “good pressure”. He added: “I worry about privatising regulation but I also worry about leaving it totally at the mercy of government funding. So, this system could be a happy medium – we will find out!”

Consistency of approach by individual inspectors was raised as a question by a delegate, to which Mr Ashton responded: “We follow the Enforcement Management Model, and our thought processes and internal guidance are all available to everyone to view, so there is total transparency. We also have a peer-review process, which, professionally, is extremely valuable. And there are 100-per-cent quality checks on all invoices we issue.”

Answering another question, Mr Ashton said the scheme in this format is not going to be extended to local authorities because, with 400+ to cover, “it would not be practical”.

He concluded: “I think FFI is here to stay and, some years from now, we will be glad we did it.”

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I imagine these companies in material breach, are the same companies calling for less regulation and whole heartedly agreeing with Mr Cameron`s anti H&S stance?

And given that most companies are not inspected this statistic could concievably have risen further had they been inspected?

It is too easy to blame regulation for confusion and ambiguity?

Even ACoP`s have come under attack and they are strict duty requirements?

Endless advice is already free, yet Material Breaches abound?


In other words, the HSE are now a mushrooming, self funding quango.
Of course targets are an issue and Mr Ashton should not try to conceal this- the HSE contacted a CDM-C to confirm the start date of a construction project and a visit was made within 2 days. The inspector told the foreman that he had “made” over 1k the previous day. FFI is wide open to corruption, disparity between inspectors and who would wish to risk contacting the HSE for advice?


As I have stated previously: This could easily turn into a license to print money.
Industries where profits still exist can be easily targetted, and it is not inconceivable that minor items such as a blown light or a failed heater in a toilet (I’ve been pulled for this in the past by an HSE field operative) could easily be seen as a material breach and lead to significant remuneration for the FFI fund.
Can anyone say they never find anything that needs fixing from time to time? HSE targets?


The HSE are very kind to themselves aren’t they? Mr Ashton says “If we ask, what is best for our customers, ,,,, ” Customers? What is the man drivelling on about? HMRC asked their staff to use the tactic.

Bob Kennedy’s philosophising is no more than wishful thinking.

If I was a customer, I could opt to go to elsewhere. HSE are an enforcement agency and, in terms of their incompetent inactivity with regard to the really important matter of REACH, an extremely rubbish one at that.


No one in this profession would argue against prevention, but with or without FFI the HSE needs to monitor is consistency. One visit, clean bill of health and and no FFI is great. Multiple visits to multi sites within a few days of each other by different inspectors produces a different picture of how enforcement policy is interpreted and what inspectors regard as material breaches.


The companies in “material breach” are not necessarily the same ones calling for less regulation – they are the ones who have worked hard and invested to ensure significant hazards are under control and are now being charged under FFI for what would have been advisory recommendations 6 months ago because “in the opinon of the inspector” it is a material breach, yet the specific breaches of legislation are not clearly identified. Surely no financial target for the HSE to meet, eh?


So we have 1400 FFI bills over a 3 month period, representing 25% of all of the proactive inspections made – i.e about 6,000 inspections – 2,000 per month. Assuming there are about 250 field inspectors this represents about 2 proactive inspections per week by my calculations and 2 FFI charges per inspector per month.

There seem to be some obvious questions to ask about whether HM Government wouldn’t be better advised to not charge FFI and improving inspection efficiency instead


I’ll be very interested in seeing how much of the income generated comes from other public services, compared with private companies. I do hope the HSE will be transparent in publishing a breakdown of income by industry type. We could end up with the situation of Peter being robbed to pay Paul. Not a particularly efficient way of using public funds.


I would Hope that some of the income generated from this income actually goes back into providing guidance and advice preferably on a face to face or telephone advice line basis.

Lets not forget the Functions of the Executive as laid out in the Health and safety at work Act particularly Provision 11 Paragraph 2 section C.

I believe that if this was the case the number of material breaches would decrease dramatically and where they were found there would be no recourse for complaint or appeal


As I said, the inspection may have been flawed, in which case we have had a result?

If however they appear elswhere and find fault, unless I know different, I stand corrected by their intervention.

Sh– happens, that`s why we are tasked with managing it when it occurs.


A material breach must be based on the applicable LAW that is breached.

Differing inspection findings will be subject to competence and individual bias to a lesser extent, which is evident in any regulatory framework. People are not robots, and a degree of variation is to be expected.

You have the right to appeal if you feel the Inspector is incorrect?

If procedures are adopted across the board there should be minimal deviation in practice.

And if they differ, why is it so?


In construction we are engulfed by regulatory requirement placed upon us from start to finish.

That said, prevention is to be strived for regardless of legal obligations imposed.

Having had one of our sites inspected 2 weks ago, without any FFI being incured we are either making a good effort at it, or the Inspection was flawed? (given the alleged quota`s to be fulfilled)

Regardless, we continue our best effort at improvement because it makes sence, not because we have too.


I fear it will turn the HSE into the ‘wheel clampers’ of the safety world-which would be a shame as good working relationships will be undermined. Local authorities do more inspections (HSE’s own figures) than they do, but they can’t charge, hardly a balanced and fair scheme when large sectors are not even included.