I well remember the concept of charging for an HSE inspector's time, when a material breach of the Health and Safety at Work Act or associated Regulations occurred, during my latter years as Chief Executive of the Institution of Occupational Safety and Health (IOSH). As the idea developed it became known as Fees for Intervention (FFI for short) and it was discussed as an emerging concept at my quarterly meetings with senior HSE representatives at the time.
Over the years, regular and significant Government cuts to HSE funding had resulted in reduced staff numbers, the closure of the HSE free helpline and a reduction in proactive HSE inspections (focusing instead on higher risk and poor performing businesses). This was followed by the Government imposing a legal duty on the HSE to recover its costs from non compliant businesses, resulting in the introduction, following due consultation processes, of the Fee for Intervention (FFI) cost recovery scheme on 1st October 2012.
The aim of the scheme (very unpopular with businesses and commentators at the time) was for the HSE to charge for their time, by the hour, for the costs of helping to put matters right, including time spent investigating and taking enforcement action in instances where companies had breached health and safety laws.
In the intervening period since the introduction of the FFI scheme the HSE has recorded the number of FFI invoices issued, the number of individual companies to whom invoices have been issued, the industry sectors targeted, the regions targeted, the average fine issued per company and finally the amount of revenue generated per year.
These figures reveal that the manufacturing sector has been hit the hardest, generating 6 figure sums for the HSE each month. The monthly FFI invoice run is now well over £2m with the average FFI invoice around the £700 mark. The figures reveal a constant increase in fines issued and revenue generated since the introduction of the scheme in 2012.
However, far from being a commercial “money-generating” scheme (an accusation levelled by many businesses and commentators since the FFI scheme was introduced) you will see from the following table that FFI, in fact, has run at a loss since the very first year and even with the latest fee increase (to £129 per hour from the initial fee of £124 per hour) there will be insufficient income generated to cover the rising costs of administering the scheme. Given this published accounting information one has to question whether the FFI scheme has realised the initial expectations and justified the reasons given at the time for its introduction.
Having said all that, the FFI scheme is still with us and appears to be an established part of the HSE's accounting processes now, so let me tell you a little more about how the scheme actually works:.
When a fee is levied, it includes the costs incurred covering the time of the entire original visit. The total amount recovered will be based on the amount of time it takes the HSE to identify the breach and help a company put things right (including associated office work), multiplied by the hourly rate.
According to published HSE guidance,the fee may include the inspector’s time:
- “at your business or workplace
- preparing reports
- getting specialist advice
- talking to you after the visit
- talking to your workers
The fee can vary depending on:
- how long the original visit was
- the time the inspector spent helping you put things right
- the time it took the inspector to investigate your case
- any time the HSE spends on taking action against you”
By Regulation 24(5) of the Health and Safety and Nuclear (Fees) Regulation 2016, and in earlier 2012 regulations, the Secretary of State granted the HSE the duty and power to create a procedure to resolve disputes in relation to the fees it may claim under these regulations.
The dispute process introduced by the HSE provided duty holders with the means to challenge the alleged contravention as well as the amount of fees charged firstly by way of a “query”. Upon receipt of a query, the HSE FFI team liaises with the relevant HSE Inspector to consider the challenge and as a consequence the claim for fees is confirmed, withdrawn or amended.
A decision not accepted by the duty holder may be referred to an HSE FFI panel by way of a “dispute”. In the event of an unsuccessful referral to the disputes panel, the HSE may charge fees at the same rates for consideration of the dispute. There is no provision for payment of fees to the duty holder in the event of a successful dispute.
Personally, I don't see a likelihood of the FFI scheme being extended beyond the reach of the HSE inspection regime (e.g. into Local Authority and EHO inspections), given the loss-making statistics revealed above. However, I do think that the HSE's FFI scheme is probably here to stay, at least until such time as overall Government funding for the HSE becomes less stringent (if ever).
In the meantime, here are some FAQs to help duty holders understand the process and implications of the scheme:
How much will I be charged?
From the 1st October 2012 if a HSE inspector identifies a ‘material breach’ on your premises, the duty holder (i.e. the company/person responsible for health and safety) will be charged £124 per hour (now £129 per hour) from the moment the inspector arrived on site to the point when the inspector is satisfied that the issue is resolved or prosecution is taken. The rates will be charged at 6 minute intervals. The officer will not be getting paid £124 per hour, that is the cost of the whole HSE ‘service’ to investigate the 'material breach'. If the HSE need to obtain specialist advice, i.e. from a consultant, the whole cost of obtaining this advice will be passed on to the duty holder.
What is a ‘material breach’ ?
This has been defined as a breach of any health and safety legislation that the inspector has to notify you of in writing. Any observed breach, unless is it is immediately dangerous, will have to go through a HSE back office system called the Enforcement Management Model (EMM). This will look at a number of factors, including the severity of the risk in comparison to the risk if safe measures were taken. It will also look at overall compliance with any relevant standard. They will also take into account relevant incident history (i.e. has it happened before), history of enforcement action, whether the offence occurred due to the duty holder deliberately trying to seek financial advantage, the level of actual harm that has happened, the inspection history of the duty holder, and whether the inspector has confidence that you will comply. Once this process has been undertaken, if it is found that the inspector needs to write to you/serve notice/proceed for prosecution, this will be considered a material breach.
When will I get an inspection?
Normally inspection will follow either a complaint to the HSE regarding a particular issue or through an accident report. Not all accident reports are followed up as they are prioritised by the HSE. It is an offence not to report certain accidents so if someone contacts HSE due to an injury that has not been reported (but should have been) this may be considered a material breach; so don’t be tempted not to report accidents in the usual manner. Inspectors can inspect premises at any time, and they may also undertake some proactive inspections where there has not been a complaint or accident.
Can’t I just not let them in?
HSE inspectors have some serious powers of entry, it is an offence to obstruct them in their duty, it would also not reflect favourably when they asses the risk of non-compliance using the EMM; therefore I would strongly recommend that you don’t do this, it will only make matters worse!
What should I do if I get an inspection?
Cooperate fully with the inspectors as the sooner they are completed with the inspection the smaller the bill. The greater the confidence the inspector has in your willingness to do things the way they would like you to do them, and your overall control of health and safety on site, the better. The inspector has legal powers to take documents and objects but make sure they give you a receipt. Be aware that what you say may have legal consequences, especially if they have cautioned you. It is recommended that you obtain legal advice as soon as possible, even over the telephone if you are being investigated for an offence.
Can I appeal a fee?
Yes you can. There are three stages; a "query", a “stage one” appeal and a “stage two” appeal. Not all appeal stages are free. If you query a bill (i.e. want to know what it is for and how it has been calculated etc) then this will be free. If you wish to progress to a “stage one” appeal this will be reviewed by a HSE manager but will be charged at the hourly rate at £129 per hour. If you wish to appeal that decision to a “stage two” appeal, this will have one independent adjudicator on the panel but again will be charged at £129 per hour.
Can I still appeal an enforcement Notice?
Yes, you can still appeal health and safety Improvement and Prohibition Notices to an Employment Tribunal. If your appeal is upheld you will not be charged the associated costs from the HSE for investigating that particular material breach. Similarly if you are found not guilty in court when being prosecuted you will not be charged costs for investigating. However, if a case is not taken to court for whatever reason you will still be charged for total investigation and office work etc up to that point. That could be a significant amount of money, especially in complex cases requiring expert technical and legal advice.
How can Southalls help clients minimise potential FFI charges?
At Southalls we often find multiple contraventions on the first health and safety visit to a new client so the risks are very real indeed! A key part of the Southalls service is to ensure that you, the client, receives fully competent advice on your health and safety responsibilities and our consultants work with you to find workable solutions to manage risk and protect your stakeholders. Safety Cloud is an invaluable tool used by businesses to ensure essential health and safety matters such as staff training, equipment and fleet maintenance and health surveillance is kept on time and on track meanwhile, accidents are logged ,audit programmes automated and risks assessments are readily available.
At Southalls, we have a history of successfully appealing client FFIs and, combined with our holistic approach of expert consultancy backed up by our innovative safety management software, known as Safety Cloud, many businesses have exceptionally robust systems in place! HSE feedback at client inspections has been phenomenal and long may it continue!
Rob Strange OBE