Fees for intervention

Described variously as ‘a blank cheque from industry to compensate the HSE for cuts in its departmental budget’ to ‘another tool in the enforcement box which inspectors can use to encourage compliance’, new regulations mean failure to ensure you comply with safety laws could mean charges of £124 per hour.

From 1 October 2012, under regulations 23 to 25 of The Health and Safety (Fees) Regulations 2012, the HSE has a duty to recover its costs for carrying out its regulatory functions from those found to be in material breach of health and safety law. A material breach is when, in the opinion of the HSE inspector, there is or has been a contravention of health and safety law that requires them to issue notice in writing of that opinion, to the duty holder.

The HSE may then recover its costs by charging a fee for the time and effort it spends on helping you to put the matter right, investigating and taking enforcement action.

The Fee for Intervention (FFI) is only a concern for those businesses who are breaking health and safety laws. FFI does not apply to either self-employed people who only put themselves at risk, or to employees. Those who comply with their legal obligations will continue to pay nothing.

The fee charged will be calculated by the hour incurred, multiplied by the FFI, which at the moment stands at £124. Chargeable time includes all work that is needed to identify a material breach and all work to ensure that the breach is remedied. It includes any investigation or enforcement action, up to the point where HSE’s intervention, in relation to the material breach, has been concluded or a prosecution is started.

So what is to be the likely impact of such charging?

Talking to one of our new clients recently, who was found to be in material breach of three key areas of the Control of Substances Hazardous Health Regulations last year, they estimated the following hours were spent by the HSE in their case:

• Inspectors initial visit 6 hours
• Issuance of prohibition and improvement notices 3 hours
• HSE time taken meeting with client 4 hours
• Provision of the services of the Health and Safety Laboratories (HSL) 8 hours
• Inspector follow up visit 4 hours

This comes to a total of £3,100 the HSE inspector would have charged under the new FFI regulations. But this fee does not take into account other areas where the HSE may now charge for their time which can include:

•  Assessing the findings and the documentation of inspection, investigation and enforcement conclusions
• Recording conclusions and inspection, investigation and enforcement information
• Reviewing investigations to ensure progress and appropriate lines of enquiry are followed
• Charges incurred by third parties used by the HSE, such as expert advice, testing laboratories etc.

These fees are chargeable in addition to any fines imposed by courts and cannot be claimed back from insurance. There will also be the remedial costs of rectifying the breach, which the duty holder will have to pay.

Many critics of the scheme have expressed concerns that the HSE may now issue notices of a material breach, where informal guidance would normally have been given, or that inspectors will go on ‘fishing expeditions’ – thus allowing the opportunity to charge for services. In effect that the scheme is a blank cheque book!

But HSE inspectors must apply their existing enforcement decision-making framework when deciding if a breach is material. The Enforcement Policy Statement and the HSE’s Enforcement Management Model (examples of these can be found on the HSE website) set out examples of when a ‘material breach’ might occur.

The scheme has however been broadly welcomed, by safety experts, union bodies and safety pressure groups alike. The regulations are a result of the Government’s “Good Health and Safety, Good for Everyone” policy, which intends to shift the cost of health and safety regulation from the tax-payer, to businesses and organisations that break the law.