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HSE introduces Fee for Intervention

Following Parliamentary approval of the Health and Safety (Fees) Regulations 2012, the Health and Safety Executive ('HSE') will, from 1 October 2012, seek to recover, via a process known as 'Fee for Intervention' ('FFI'), some of the cost of regulation from businesses and organisations which contravene health and safety law.

Under FFI, the HSE will only recover the costs of its regulatory work from duty holders (which include publicly funded bodies) considered by the HSE to be in material breach of health and safety law. The HSE will not seek recover its costs under FFI in relation to any prosecution costs in England and Wales after an information is laid at a Magistrates’ Court (in the event of a formalprosecution) as any subsequent HSE prosecution costs will only be recovered at the Court’s discretion.

A 'material breach' occurs where, in the opinion of the HSE inspector, there is or has been a breach of health and safety law, and in those circumstances, the HSE mustfirst issue notice in writing of that opinion to the duty holder. The means of notification will include, but is not limited to improvement or prohibitionnotices, clearly stating which contraventions are considered to be materialbreaches.  

The FFIcovers the HSE’s reasonable costs during its regulatory work in relation to a material breach and includes work undertaken in identifying that breach up until their intervention is concluded or a prosecution commenced. The fee rate is intended to be subject to review but is currently set at £124 per hour (except where third party experts/HSE laboratories are involved where the actual cost of work will be recovered).

In practical terms, invoices will be generally sent to duty holders every two months, payable within 30 days, and any debts to the HSE may be recovered through the Civil Court. No VAT will be charged on the invoices. An invoice can be formally disputed either via review by independent HSE senior management or a panel of HSE staff and an independent representative, but a fee is payable for handling disputes.

The introduction of FFI means that healthcare bodies will need to consider carefully the following for the future:

  • Establish a dialogue with your HSE inspector as soon as possible after any issue arises, with the aim of avoiding the conclusion that your organisation is in material breach of its relevantduty. An early dialogue, together with remedial steps (below) may avoid theinspector making such a finding and thus may prevent FFI costs.
  • In the event that the material breach is identified, agree and carry out as quickly as possible remedial steps torectify the contravention identified in order to minimise the FFI costs that may be claimed by the HSE.
  • Factor the risk of potential FFI within your organisation’s budgetary contingencies for potential health and safety liabilities.

For further information, please contact David Firth (020-8780-4785/ 0113-322-5566 / david.firth or Shaun O’Malley.