The controversial Fee for Intervention (FFI) scheme was one year old on 1st October 2013.
What lessons can be learnt?
Cost recovery for HSE investigations
The Health and Safety (Fees) Regulations 2012 place a duty on the Health and Safety Executive (HSE) to recover costs from businesses and organisations that are found to be in material breach of health and safety law.
The Regulations are designed to shift the cost of health and safety enforcement from the public purse to businesses that contravene health and safety laws. In June 2013 FFI invoices had exceeded £1 million.
What is a material breach?
A “material breach” is defined as a contravention of health and safety law that requires an inspector to issue a written notice to the duty-holder. This may be notification of a contravention, an Improvement or Prohibition Notice.
The HSE could, for example, issue a notification of contravention and charge for FFI time if an inspector becomes aware that asbestos materials are in a poor or damaged condition, or that maintenance staff are unaware of asbestos risks.
How much is the fee?
Since 1 October 2012, it has been £124 per hour. If you dispute the invoice or the alleged material breach this is also charged at £124 p/h.
FFI costs include
- Writing reports
- Preparing and serving improvement and prohibition notices
- Site visits and investigations
- Taking statements, making phone calls, gathering evidence
- Research related to the material breach
If the HSE appoint external contractors, the dutyholder will be charged the full extent of those third party’s fees, not limited to £124 p/h. This could run into thousands of pounds.
Lesson 1 – Prevent material breaches
Dutyholders that are compliant with the law, or where a breach is not material, will not be charged FFI.
The HSE paper “The basic health & safety mistakes crippling British industry” sets out the 9 most common mistakes that result in fatalities or serious injury.
Are you confident that your business or organisation has assessed the following risks:
- Poorly maintained or misused ladders
- Dangerous work at height
- Inadequate safety guards on machines
- Badly organised workplace transport
- Exposure to deadly asbestos fibres
- Exposure to toxic paint vapours
- Creating clouds of silica dust
- Damage caused by vibrating power tools
- Unhygienic welfare facilities
Lesson 2 – Query the invoice
Under the FFI scheme, HSE inspectors can invoice a business for investigations and site inspections without making any formal charges against the company.
Invoices are then sent every 2 months.
The average FFI invoice has been £428. Despite the relatively low costs, a business should not ignore the initial invoice. FFI can ultimately result in criminal liability and damaging PR. There is a danger that paying the FFI invoice could be used as evidence that the business has accepted liability.
ELM law can help you appeal the FFI invoice if the costs are unreasonable or disproportionate, or if you believe there has not been a material breach.
The HSE Board Paper “The First 6 months of Fee for Intervention” reported that out of 145 invoices queried, 36% of the invoices were amended.
Lesson 3 – Appointed representative to deal with the HSE
When a reportable accident or incident occurs, a RIDDOR report must be submitted to the HSE. This is often the trigger for an HSE investigation. The HSE can also commence investigations in response to tip-offs from employee whistleblowing or insurance audits.
Since October 2012, there has been a growing trend for the HSE, following receipt of a RIDDOR report, to request the dutyholder’s internal investigation report as well.
These reports should be written by a trained health & safety officer or manager that understands the seriousness of HSE prosecutions.
Each site should therefore have an appointed representative to undertake internal accident investigations and deal with the HSE.
Lesson 4 – Check the terms of your insurance policies
You should check your existing insurance policies to consider whether you need to tell your insurers when a FFI invoice has been received.
The receipt of a written notice from the HSE and/or receipt of a FFI invoice may be the trigger for formally notifying the insurance company. If you fail to comply with the insurance policy notification conditions, the policy cover could be invalidated.
There are various Management Liability policies available that could give your business extra protection. These policies can respond if there is any criminal or regulatory investigation, including health & safety, environmental, tax or trading standards.