HSE’s new Intervention Charging System – Ouch!
We have written in this column before about the forthcoming HSE charging system FFI (Fees For Intervention), championed by Government as a way of offsetting the reduction in the HSE budget. FFI has gone through a few changes during its consultation period.
Now the finalised details are to hand, and here are the main points.
Material Breach
The onus of proof is on you to show that you are not breaking the law – the HSE Inspectors will have full rein to decide that in their opinion (alone) you are, to declare a Material Breach, and to begin to charge you for their work.
The HSE’s own guideline is less than clear what might constitute a Breach, they that state a breach has occurred 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
They give as an example:
materials containing asbestos in a poor or damaged condition resulting in the potential to release asbestos fibres
Construction health and safety specialists will ask – in relation to what? Contractors frequently encounter this risk but it is hardly their fault. It is how they deal with it, and who they engage as specialists, that matter, not the simple existence of this hazard. The guidance needs to be clearer: particularly because specialist asbestos contractors are exempted from this charging system (they already have a paid inspection scheme). In theory, HSE could charge twice for the same alleged breach.
If you are a sole trading self-employed contractor, employing no-one else, you are not covered by this legislation. If you are an employer and one of your employees does something stupid and breaks the regulations (counter to your instructions and rules), he or she is not liable – you are. This seems to run counter to the new easing of onerous regulations on employers that has recently been announced by Government.
Cost
Brace yourself for a long list of chargeable hours, because the meter starts to tick as soon as the Inspector decides you are at fault, and includes lots of off-site letters, emails, reports, taking statements, sending out notices and getting third party reports. The initial rate per hour is £124 (wouldn’t you like to be able to charge out at this rate?) and you will have 30 days to pay the bills, which will arrive every other month for as long as this drags on.
Those lucky enough to be regulated by Local Authorities rather than the HSE will not be threatened with a payment regime, at least for now.
Appeal
Yes there is a process, but as we recently reported, it is to others within the HSE, with only one independent representative on the panel. And you only have 20 days from an invoice (less time than you have to pay it) in which to complain. Furthermore, you have to pay the HSE to get the HSE to review the HSE’s case against you.
This all concerns appeals against the Material Breach case or the costs thereof. The existing right to appeal against an Improvement Notice or Prohibition Notice continues: this will be heard by an Employment Tribunal so it seems likely that you are better off saving any firepower that you might have for an appeal on these grounds, rather then the new Material Breach appeals system. HSE cannot charge for its work in connection with this sort of appeal.
It is of course true that you will not be caught by this system, if you are within the law: but in reality it is all too easy to flout laws unknowingly. It is certain that expert health and safety consultants such as those employed by McCormack Benson Health & Safety are going to be busy keeping a very close eye on how this new regime operates, and will be advising their retained clients on how to deal with it. Make sure that your company gets the right assistance.