Following a recent case, the Health & Safety Executive’s (HSE) Fee for Intervention (FFI) dispute process has been called into question by the Courts. The HSE has agreed to introduce a revised dispute process for FFI notices by 1 September 2017.
What is the FFI scheme?
The FFI cost recovery scheme came into force on 1 October 2012 under the Health & Safety (Fees) Regulations 2012 and the current law is set out in the Health & Safety & Nuclear (Fees) Regulations 2016.
The Regulations hold duty-holders who breach health & safety laws accountable for the recovery of the HSE’s costs for inspection, investigation, enforcement and prosecution.
If a party receives a FFI notice and disagrees with it, a dispute can be raised directly with the HSE; whether that be due to the amount, the content, or how it relates to the duty-holder.
The Dispute Process
When the Regulations were first introduced in 2012 a FFI dispute was dealt with in two stages:
- Stage 1 – A HSE Principal Inspector, more senior than the Inspector responsible for the investigation, which the FFI relates to would review the details of the dispute, and pass a decision; then
- Stage 2 – If the duty-holder was not satisfied with the outcome, the decision could be appealed with a panel of two HSE Senior Managers (with no operational involvement with the matter) and one independent person reviewing the decision.
In June 2014 the HSE revised the dispute process removing stage 1, meaning all disputes are now considered by a panel in an attempt to bring more transparency to the dispute resolution process.
Following the dispute process, if a FFI notice is upheld by the panel, the duty-holder is required to pay the sum of the FFI and any costs reasonably incurred by the HSE handling the dispute (including legal costs and expenses). Civil action could follow if s duty-holder refused to pay.
R (OCS Group UK Limited) -v- HSE
The dispute process faced criticism for lack of independence in a recent case. The case saw OCS request a judicial review of the FFI dispute resolution process.
OCS agreed in principle with the FFI as it passed the costs of monitoring health and safety, and duty-holder compliance of law and regulation to businesses and individuals being investigated, rather than relying on funding from the tax-payer; but OCS were concerned with the lack of independence, fairness and transparency with the HSE’s current dispute process.
OCS took the matter to Court in March 2017 requesting the process be reviewed. OCS felt the HSE acted as prosecution, judge and jury; arguably a view felt by many duty-holders. The strength of OCS’s case was recognised by Kerr J who, when granting permission for judicial review, stated “it is arguable that the HSE is unlawfully judge in its own cause when operating the FFI scheme”.
OCS’s claim was ultimately settled out of Court with the HSE agreeing to introduce a revised process to resolve disputes on or before 1 September 2017. The HSE agreed it was appropriate to move to a fully independent process for considering FFI disputes.
A Revised Scheme
The HSE opened a public consultation in April seeking the views of duty-holders to ensure any revised process was accessible to all types of business and proportionate to the issues involved and level of fees in dispute.
Prior to the consultation the HSE published a document ; which flagged key areas that would be considered during the review; including:
- Information available to duty-holders to ensure FFI’s are understood;
- Establishing a process for duty-holders to make sufficient representations;
- An amended independent panel structure – possibly consisting of a legal representative and two other members with health & safety experience;
- Alternative processes for disputes; i.e. where fees in dispute are small; or where there is no disputes as to a breach of law; and
- Circumstances where a dispute may be suspended.
The public consultation closed on 2 June 2017 and the HSE now has a period of time to consider responses prior to the 1 September 2017 deadline for the launch of the new dispute process.
Keep your eyes peeled for another Gateley blog later in the year, commenting on the amended dispute process.
This post was written by trainee solicitor, Oliver Woodhouse. For further information, please contact:
Kate Oliver, associate, Regulatory
T: 0121 234 0177