Emma Evans

The Health and Safety Executive (HSE) has finally announced that it is going to consult on its somewhat controversial costs recovery scheme, known as Fee for Intervention ("FFI") and implement a new, independent dispute process on or before 1 September 2017.

Since October 2012, where a HSE Inspector is of the opinion that a duty holder has committed a 'material breach' of health and safety law, the HSE is now entitled to recover its reasonably incurred costs in performing its regulatory function, to investigate and/or take enforcement currently at the rate of £129 per hour. The original objective of FFI was to transfer the cost of regulating health and safety at work from taxpayer's public purse, to those who break health and safety law.

Since the scheme began, over 60,000 FFI invoices have been issued raising almost £40million in revenue for the HSE – the average per invoice is approximately £610! However, it has not all been plain sailing. The cost to the HSE of operating and recovering the scheme has routinely exceeded the overall total revenue generated by it. Similarly, not all duty holders have welcomed the scheme's lack of impartiality and the process for challenging FFI has been highly criticised.

In the first instance, all FFI enquiries or challenges are treated as 'queries' and no fee will be charged by the HSE for its response to a query. However, if a duty holder is not satisfied with the HSE's response, it may formally 'dispute' the invoice. Disputes are currently considered by a panel of two HSE managers, and only one independent representative. If the 'dispute' is not successful, the duty holder will be liable for the original FFI invoice and the costs incurred by the HSE in dealing with the dispute (often, in addition to its own legal fees).

An independent review of FFI carried out shortly after its inception, revealed that only 3% of FFI invoices were queried and only one third of those queried, were subsequently amended (1% of the total invoices issued). The figures for disputed invoices were even lower with just three of over 14,000 invoices being referred to the disputes panel and only one of which was successfully challenged.

OCS Group UK was unsuccessful in disputing an FFI invoice in August 2014, after receiving a Notification of Contravention alleging failures in the management of Hand Arm Vibration Syndrome (HAVS), but was later granted permission to judicially review the FFI dispute procedure. Judicial Review considers the lawfulness of a public body's decision making process or procedure, rather than the merits of an individual decision.

Like many other duty holders, OCS has been quoted saying: "Our decision to ask for a judicial review of the Fee for Intervention dispute resolution process was not about opposing the idea of FFI, but about addressing concerns we have about the independence, fairness and transparency of the dispute process in which HSE effectively acted as prosecution, judge and jury.” It is unsurprising that so few FFI invoices have been challenged, given the way the HSE operates in this context.

The case was listed to be heard in the High Court in March 2017, but following the HSE's announcement in February that it intended to consult with relevant stakeholders and duty holders and make the dispute process fully independent, the OCS judicial review since settled out of court.

So what will this mean for the future of FFI? Duty holders will no doubt be encouraged by this proposal and wait to see what the consultation generates and what change is brought about. This may result in more duty holders exploring the options around the potential to challenge an invoice, in certain circumstances. An independent dispute process for FFI may also help to address some of the negative perceptions around the HSE's integrity, start to rebuild the trust with duty holders and bring about a more fair, just and transparent 'check and balance' to the overall FFI process.

Emma Evans, associate, Pinsent Masons LLP