Following the case of R (OCS Group UK Limited), the Health & Safety Executive (HSE) has published details of its revamped Fee for Intervention (FFI) dispute process which went live on 1 September 2017.
What is the FFI scheme?
The FFI cost recovery scheme came into force on 1 October 2012 and the current law is set out in the Health & Safety & Nuclear (Fees) Regulations 2016.
The Regulations hold dutyholders 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.
The Historic Dispute Process
Until 1 September 2017 the HSE required a FFI dispute to be considered by a panel of two HSE Senior Managers (with no direct involvement with the matter) and one independent person reviewing the decision.
If the panel upheld the FFI notice, the duty-holder would be required to pay the sum of the FFI plus costs reasonably incurred by the HSE handling the dispute.
R (OCS Group UK Limited) v HSE
The particulars of R (OCS Group UK Limited) v HSE are considered in our blog published earlier in the year – Fee for Intervention scheme under the microscope.
Ultimately, the case saw the HSE agree to revise the FFI scheme, moving to a fully independent process when considering FFI disputes. The Judge in the case noted that “it is arguable that the HSE is, unlawfully, judge in its own cause when operating the FFI scheme”.
The Revised FFI Scheme
The HSE opened a public consultation in April 2017 to consider the requirements of a revised dispute process which operated in a fully independent manner.
Following the public consultation, on 1 September 2017 the HSE announced the new independent scheme, publishing guidance on the new process. From this date a dutyholder must still raise any dispute against an invoice within 21 days, following which any disputed invoice will be considered by a fully independent panel.
The panel is made up of an independent lawyer who will act as a chair and two lay individuals with practical experience of managing health & safety in industry. Details of the panel members and their relevant experiences are to be provided to the duty holder before any meeting to consider the dispute.
The dutyholder will then be notified of the panel’s decision within 21 days, together with a document detailing written reasons for the decision.
The panel have three options when considering a dispute:
- To uphold the invoice, in favour of the dutyholder – the HSE will then inform the dutyholder of the process for cancelling an FFI invoice;
- To partly uphold the invoice – the HSE will inform the dutyholder of timescales for payment of an appropriately varied invoice; and
- Not to uphold the invoice – in this case the HSE will expect payment of the invoice no later than 10 days after the date of the written outcome of the dispute. The HSE will also issue an invoice covering the costs reasonably incurred in handling the dispute. These costs will only relate to the costs incurred by the panel considering the dispute.
The Revised Scheme – In Practice
- Invoice Query – on receipt of an FFI contact and raise a query within 21 days of the invoice date;
- HSE Response – the HSE will respond within 21 days of receiving the original query. If the dutyholder accepts the response:
- In full – the invoice must be paid within 30 days of the invoice date or no later than 10 days after the notification of the query outcome;
- In part – part payment of the undisputed amount must be paid within 30 days of the invoice date or no later than 10 days after the notification of the query outcome;
- Raise a Dispute – if the dutyholder does not accept the HSE response a dispute should be raised in writing within 21 days of response to the original query;
- HSE Acknowledgment – this is to be sent to the dutyholder within seven days of receipt of the dispute;
- Consideration of the Dispute – the independent panel will then consider the dispute and respond to the dutyholder within 21 days, one of the three options outlined above will then be applied, either the invoice is: (1) upheld in full, (2) partly upheld, or (3) not upheld.
Following the public consultation the change to the dispute process has been reassessed and now appeals against FFI invoices will be heard by an independent panel.
It is clear that the HSE has listened following industry comment from duty holders over a lack of independence and one would think that the revised process shows a sensible change to ensure a more transparent process for business and individuals disputing FFIs going forwards.
This post was written by Oliver Woodhouse. For further information, please contact:
Oliver Woodhouse, solicitor, Regulatory
T: 0121 212 7735