By Gary Rubin, Partner with Blackfords LLP
In a press release HSE announced that it would be revising the dispute process for its Fee for Intervention Scheme (FFI) to make it ‘fully independent’. A spokesman for the Regulator said it had always kept the dispute process under review and now was the right time to make changes.
What we now know is that two days beforehand HSE had signed a consent order, later approved by the High Court on 23 February, in which OCS Group UK agreed to withdraw its application for judicial review on the basis that HSE agreed to withdraw the notification of contravention it had served on the Company alleging material breaches of the Control of Vibration at Work Regulations 2005 and, more significantly, agreed to revise the dispute process for challenging FFI invoices.
The new process is to be introduced by 1 September this year. The schedule to the consent order sets out the main features of the new process. HSE has agreed to consult stakeholders upon the details of the outlined process and any possible additional requirements.
In HSE’s 2011 consultation on the introduction of FFI it proposed a two stage process for dealing with disputed FFI invoices: Level 1 (the query stage) to be considered by a Principal Inspector with operational experience and Level 2 (the dispute stage) to be considered by an HSE senior manager.
In the report of the outcome of the consultation presented to the HSE Board in December 2011 it was stated that respondents “commonly used the phrase ‘judge and jury’” to describe HSE’s proposals for dealing with disputes. HSE’s solution was to have the dispute stage determined by a panel comprising “senior HSE staff sitting alongside an external business representative”. The problem with this is that the independent representative could always be out voted by the HSE members.
It is therefore unsurprising that Mr Justice Kerr when granting permission for the judicial review observed “It is arguable that the HSE is, unlawfully, judge in its own cause….”.
Under the new process disputes will be determined by an independent panel consisting of a lawyer as chair and two members with practical experience of health and safety management. The panel will have discretion in appropriate cases to convene a meeting with the inspector and the dutyholder as part of its consideration of the dispute. It is understood that the lawyer is likely to be from a panel of lawyers chosen from the Attorney General’s Civil Panel.
HSE will also now have to provide a summary to the dutyholder setting out why the inspector is of the opinion there has been a material breach of health and safety law, the evidence/information upon which this opinion is based and why the costs incurred are reasonable. The dutyholder will then be able to make written submissions detailing why there has not been a material breach and/or the costs are unreasonable. The dutyholder can submit any information, documents or evidence it wishes to be taken into account. In relation to disclosure HSE will be required to provide the evidence/information it relies upon subject to any need to protect sensitive material.
Since the introduction of FFI there have been criticisms of the dispute process, notably that it was not independent of HSE. Mr Martin Temple, who succeeded Dame Judith Hackitt last year as Chair of HSE, raised concerns about the process for dealing with disputes in his 2014 Triennial Review Report on HSE. Yet until now HSE has refused to budge. When the judicial review was first reported HSE insisted it was defending the claim although was reluctant to give any detail of what its defence actually was.
The full hearing was due to start on 8 March. It is only with the prospect of the process being scrutinised by a High Court judge that HSE has finally succumbed to what many believe was inevitable.
Without this judicial review I doubt HSE would have revised the process to the extent it has signed up to in the consent order. OCS is to be commended for bringing this action and for standing firm. It is now up to business and safety practitioners to fully engage in the forthcoming consultation to make sure a truly fair, transparent and independent dispute process is achieved.
Gary Rubin is a Partner with Blackfords LLP, a top ranked criminal & regulatory firm. He is head of the Regulatory Team based in the London office specialising in business & regulatory crime, with a particular emphasis on health & safety and workplace incidents and fatalities.
Wouldn’t it be a lot easier just to get rid of FFI?
I don’t think FFI is bad per-say it just needs to be used correctly for its intended purpose. Their is a cost to HSE investigations and rightly this should be recovered from companies that breach legislation. https://www.tbdavies.co.uk/
Well written article Gary, and I agree with your sentiments. For far too long the HSE has wanted to chose its cake and eat it. It was obvious that the panel sitting on the Level 2 disputes, could never be impartial as they are in essence judging the competence of their colleagues, i.e. saying they were wrong to raise a FFI invoice.
As most people have suspected, sadly the driving force from the HSE seems to be financial rather than improvements in safety behaviour and the failure to act prior to the court action can only reinforce that suspicion.
I have little sympathy for those organisations who get charged under FFI – they should ensure compliance with h&s legislation. That said, I think the appeal process was clearly not impartial – talk about turkeys voting for Xmas!
Having had clients who have fallen foul of FFI I disagree that people ‘should (just) ensure compliance’.
For one thing – H&S regulation is a movable feast, based on risk assessment. How do you ensure compliance of ‘sfairp’?
The inspectors in the cases I know basically rode roughshod over quite good companies, who were ill-placed to argue against the (quite pedantic) points resulting in a couple of thousand pounds for – in my view – over-zealous application.
“an independent panel consisting of a lawyer as chair and two members with practical experience of health and safety management”
Exactly what background and experience will the two members have? Possibly HSE?
Need to see this process in action before I believe it will be any better.
While I agree that substantial changes to ffi were needed, it is essential that any panel is made up of the right people. Actual practising business people who are qualified to comment on Health & Safety plus a lawyer who understands both the law and the subject. I cannot agree with Ray Rapp who seems to think that everyone should be an expert and that will solve the problem. Accidents happen, even in the best regulated situations and will continue to do so.
The HSE and HMRC are now Judge and Jury; a large step backwards step for democratic jurisprudence .