The Health and Safety Executive (the “HSE”) operates a Fee for Intervention cost recovery scheme (“FFI”), which came into force on 1 October 2012. FFI was introduced to reduce the amount of public funding spent by the HSE, and to shift certain costs to dutyholders. If upon an inspection an HSE inspector identifies a material breach of health and safety legislation they are entitled to issue an FFI invoice to cover the costs of its investigation, which the dutyholder is liable to pay. There is no charge if the company is compliant with the law; the breach is not material; or the inspector simply issues verbal advice. If there is disagreement on the HSE’s decision, or the amount of the FFI invoices, the dutyholder can appeal by way of starting a ‘dispute’.
Disputes are currently considered by a panel consisting of two members from the HSE and one independent person. If the panel doesn’t approve the appeal, the dutyholder must pay the adjudication costs at £129 an hour. Following a recent application for a judicial review by the OCS Group UK (“OCS”), however, the HSE is now to consult on making the process fully independent.
OCS Group UK
On 20 September 2016, OCS was granted permission to proceed with a judicial review of the FFI dispute process, arguing that the HSE was effectively “judge in its own cause”. OCS’s application related to a notice of contravention it received in August 2014 over its use of strimmers at Heathrow airport, where the HSE alleged that it had breached Regulations 6(2) and 7(2) of the Control of Vibration at Work Regulations 2005. The HSE then issued OCS with invoices amounting to £2306, in relation to it costs of investigation (as entitled to under the FFI scheme). OCS disputed that it was in material breach of the regulations.
The dispute was heard in front of the FFI dispute panel (consisting of two members from the HSE and one independent member) who found in favour of the HSE. OCS did not oppose the idea of the FFI, but questioned the fairness, independency and transparency of the process, and as such, applied for permission for a judicial review.
The judicial review hearing was scheduled for 8 March 2017, however, prior to the scheduled hearing the HSE settled the case with OCS.
A consent order was agreed with the HSE, in which the initial FFI notification of contravention was withdrawn, and the HSE was to pay OCS’s costs. The HSE also agreed to introduce a revised process for determining disputes on or before 1 September 2017.
On 9 February 2017, the HSE announced its intention to consult with stakeholders on proposals for a revised dispute process, “with a view to making the scheme fully independent”. This will give stakeholders an opportunity to offer their thoughts on the new procedure.
The HSE are yet to provide any details in relation to the consultation or when it will start. It will be interesting to see whether the changes to the appeal process will apply solely to the FFI process or whether it will be rolled out across the board for all HSE cost recovery schemes, including COMAH, gas transportation and offshore activities and those covered by The Health and Safety and Nuclear (Fees) Regulations 2016.