Fees for Intervention – relief at last?

Since its controversial introduction in 2012, when the Health and Safety Executive (HSE) inspects a company and identifies a material breach of the law, the company will have to pay a fee for intervention (FFI). Any work undertaken by the HSE is recorded on an hourly basis and includes time spent identifying the breach, pointing this out to a company, and thereafter investigating and taking enforcement action.

A ‘material breach’ occurs when a company has broken a health and safety law or regulation and the Inspector judges it to be serious enough to notify the company in writing. This will normally be in the form of a Notification of Contravention. The concern was that such a notification was served whilst there was an ongoing criminal investigation by the HSE. Consequently, paying any fee for intervention could be seen, potentially, as an admission by the company that an offence had taken place. The advice to the client was always not to make a payment or, if they did, to suffer the consequences!

Further, recent increases in the hourly rate charged by the HSE along with sharp rises in their revenue streams led many corporate bodies to openly question the motivation behind the scheme. In the year to April 2016 revenue increased by one third from £10.1 million to a staggering £14.7 million.

Many labelled the scheme as unfair and argued that the disputes process did not comply with ‘natural justice’. At that time companies who sought to dispute an amount owed to the HSE would have the matter determined by a panel that largely consisted of HSE staff!

So what are the changes?

Having faced the threat of a Judicial Review earlier this year, the HSE were forced to back down and eventually agree to a new scheme which came into force on 1 September 2017. As part of this scheme the following important changes have been agreed:

• The Line Manager of the Inspector who issues a formal notice must now handle any query which is raised by a company providing that it is received within 21 days
• Companies who remain dissatisfied with the outcome are able to challenge the Line Managers decision using the new dispute procedure. As part of this process the HSE have 21 days to supply the particulars of any alleged material breach of legislation along with any supporting evidence. Companies then have an identical period of time to respond to the HSE’s evidence and set out why their assertions are incorrect.
• Unlike the previous regime, the decision on whether to uphold the dispute will be made by a new independent 3 member strong panel. This panel will be chaired by a lawyer along with 2 members who must have practical experience of health and safety management.
• The HSE will suspend the dispute procedure when it relates to an ongoing investigation or an appeal against an enforcement notice.

Is the new system fit for purpose?

Whilst it is still early days, the recent changes are certainly a welcome development as far as companies and their directors are concerned. Thankfully, the introduction of the new dispute procedure is one which appears much more open, transparent, and (perhaps most importantly) “fair” following the introduction of independent Tribunal members.

However, whilst it is clear that the Tribunal must be chaired by a lawyer who is taken from an approved list, the question as to who should sit as the other two panel members remains open to interpretation. Although they must have ‘practical experience of health and safety management’ that would not preclude, on the face of it, former (perhaps retired) HSE Inspectors who may have an underlying bias towards the Regulator.

Given that there is no scope within the current scheme to object to panel members, it seems that there is still a risk that the new disputes procedure may not be as ‘independent’ as first intended. It is therefore imperative that companies involve their lawyers at the earliest opportunity in order to explore these issues further and, if necessary, take legal action against the HSE on their behalf.

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.