HSE Fee For Intervention (FFI)

HSEs new cost recovery scheme, Fee for Intervention (FFI), will come into force on Monday, 1st October 2012. Businesses across Britain must get compliant with health & safety law or face potentially hefty costs.

The FFI scheme will see fees introduced if you are breaking health and safety laws and cover several HSE services; from site visits and evidence-gathering, letters and reports, to working with specialist external agencies.

WEP-HSE LTD, Garet Estensen stated, “Although the fees will vary depending on the case, businesses are unlikely to warm to the announcements that the HSE will charge them £124 an hour.  We expect the HSE to be thorough in identifying underlying causes which will significantly increase their time in doing so.”

“The risk of non-compliance is enormous. A workplace death could see a company face a minimum £500,000 fine, thousands more in defence costs and compensation costs, in addition to the FFI payments. Already, many are addressing issues to get their houses in order, but some could struggle to implement these changes without the help of a professional, which could in turn attract large fees if they do not select the right Professional Consultant.”

When previously the HSE would help businesses achieve compliance through advice and guidance, the introduction of fees means that each visit where a breach of health and safety law is identified offers an opportunity to raise revenue. Between 2011 and 2012, the HSE served more than 11,000 enforcement notices in the United Kingdom. If each notice is billed at an average of £2,480 (an estimate for 20 hours’ work), then companies face paying more than £27.3 million annually to the HSE.

The new revenue generated by FFI could also pay for more inspections, more inspectors, and result in more enforcement notices being issued. In theory, the system could become self-perpetuating. With the reliance on government funding reduced and the number of inspectors increased, far fewer companies will escape the net. More positively, the HSE says that law-abiding firms have nothing to fear.

The Fee for Intervention hourly rate for 2012/13 is £124. The many businesses that comply with their legal obligations will continue to pay nothing.

What is fee for intervention (FFI)?

If you are breaking health and safety laws, HSE may recover its costs from you by charging a fee for the time and effort it spends on helping you to put the matter right, investigating and taking enforcement action.

HSE’s inspectors inspect work activities and investigate incidents and complaints. If, when visiting your business, they see material breaches of the law, you will have to pay a fee. The fee is based on the amount of time that the inspector has had to spend identifying the breach, helping you to put it right, investigating and taking enforcement action.

Why is FFI being introduced?

HSE and the government believe it is right that businesses that break health and safety laws should pay for HSE’s time in putting matters right, investigating and taking enforcement action. Before FFI was introduced, this was paid for from the public purse.

FFI will also encourage businesses to comply in the first place or put matters right quickly when they don’t. It will also discourage businesses who think that they can undercut their competitors by not complying with the law and putting people at risk.

Will FFI apply to me?

If you comply with the law you won’t pay a fee.

FFI only applies to work carried out by HSE’s inspectors so if your business is inspected for health and safety by another regulator, such as local authority environmental health officers, it will not apply.

FFI will apply to all businesses and organisations inspected by HSE, except for:

• self-employed people who don’t put people at risk by their work;
• those who are already paying fees to HSE for the work through other arrangements; and
• those who deliberately work with certain biological agents.

What is a material breach?

A material breach is where you have broken a health and safety law and the inspector judges this is serious enough for them to notify you in writing. This will either be a notification of contravention, an improvement or prohibition notice, or a prosecution.

Before deciding to notify you in writing, the inspector must apply the principles of HSE’s Enforcement Policy Statement (www.hse.gov.uk/pubns/hse41.pdf) and Enforcement Management Model (www.hse.gov.uk/enforce/emm.pdf) to ensure their decision on the level of enforcement action is proportionate to the circumstances they see.

Examples of material breaches include: not providing guards or effective safety devices to prevent access to dangerous parts of machinery; or materials containing asbestos in a poor or damaged condition resulting in the potential to release asbestos fibres.

The inspector’s written notification will make it clear which contraventions are material breaches where a fee is payable.

How much might it cost me?

The inspector will record the time they have spent identifying the material breach, helping you to put it right, investigating and taking enforcement action.

This will include time spent:

• carrying out visits (including all the time on site during which the material breach was identified);
• writing notifications of contravention, improvement or prohibition notices, and reports;
• taking statements; and
• getting specialist support for complex issues. This total amount of time will be multiplied by the FFI hourly rate to give you the amount you must pay. For the current FFI hourly rate, visit www.hse.gov.uk/fee-for- intervention/index.htm.

How do I pay?

HSE will send out invoices generally every two months and you will have 30 days to pay. Details about how to pay will be included on the invoice.

How do I raise a query or dispute about the invoice?

If you disagree with the invoice, for example because you think that you were not in material breach of the law or the amount of time the fee is charged for is not correct, you can query the invoice within 21 days of the invoice date. If you disagree with HSE’s reply to your query, you can raise a dispute. You will need to put down in writing why you disagree and send it to the address above within 21 days of the date of HSE’s response to your query.

HSE will consider your dispute and write back to you with the outcome.  A panel of HSE staff and an independent representative will consider your dispute and HSE will write back to you with the outcome.

You will have to pay for HSE’s time spent handling your dispute. The amount to be paid will be the time taken to resolve your dispute multiplied by the FFI hourly rate (see www.hse.gov.uk/fee-for-intervention/index.htm). If your dispute is upheld, HSE will refund invoices or part invoices you have paid related to your upheld dispute, and you will not be charged a fee for handling the dispute.

Is it different if I want to appeal an improvement or prohibition notice?

Yes. The existing arrangements for making an appeal against an improvement or prohibition notice have not changed. Information on how to appeal an improvement or prohibition notice will be provided by the inspector when the notice is served. These appeals will still be heard by an employment tribunal. The appeal form (ETS19) included in the leaflet provided by the inspector should be sent to the employment tribunal setting out your grounds for appeal.

Concerns about invoices related to improvement and prohibition notices should be referred to the address provided overleaf, and should not be sent to the employment tribunal.