From September 2017, the panel reviewing disputed invoices under the Fee For Intervention (FFI) Scheme will be fully independent of the HSE. In addition, businesses will receive more information from the HSE on why a material breach was identified and what investigations were carried out. These changes should allow for a more transparent and independent review process going forwards.
Background
The FFI Scheme was introduced in October 2012 as a method to allow the HSE to recover investigation costs directly from a business found to be in material breach of health & safety legislation.
This means that if a business has been found to have contravened health and safety legislation and a Notice of Contravention has been issued, the HSE will normally issue an invoice for the time it took them to investigate the matter, to identify what was wrong and to identify remedial action required. This is known as a Fee for Intervention (FFI.)
The HSE currently charges £129 per hour and in complex cases, the costs to a business can be extensive. It is, of course, important to a business that they understand why they have been said to be in breach of health & safety law and to allow them to challenge an FFI where appropriate.
Disputing an FFI – "Both Prosecutor and Judge"
A business has 30 days after receiving the FFI invoice to pay it. If there is a dispute as to the whole or a part of the invoice, a review panel will investigate. It may be that a business disputes the amount of the invoice, the work carried out by the HSE Inspector or the level of information provided which justifies the HSE Inspector's belief there has been any material breach. All disputes are made in writing to the review panel.
Until 1 September 2017, this dispute review panel would consist of two HSE members and one independent member. However, there was criticism that this meant the HSE was effectively acting as both "prosecutor and judge". There was also criticism of the lack of right of appeal to an independent panel.
The 2017 consultation
A consultation reviewing the process closed on 2 June 2017. As well as the neutrality of the review panel, the consultation looked at the level of detail the HSE should provide where they believed there to have been a contravention, the opportunities businesses have to make written representations in their own defence or to challenge the HSE, the structure of the review panel and the process for querying an invoice.
Following consultation – what has changed?
The FFI dispute review panel now consists of 2 members who have experience in health and safety matters and an independent lawyer whose role is to chair the review.
From the query stage of the dispute process, HSE Inspectors will now be expected to disclose full details to a business about the contravention they believe to have taken place and the extent of investigations carried out. This should enable businesses to make more comprehensive submissions to the review panel on either the finding of a material breach or the costs incurred.
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