March 10, 2017

Fee For Intervention Dispute Scheme to be made independent

The Health and Safety Executive (HSE) has announced that it is to consult on proposals to make its Fee for Intervention cost recovery scheme (the "Scheme") dispute process fully independent.

HSE has always kept the dispute process under review and following a recent application for a judicial review we believe the time is right to move to a dispute process which is completely independent of HSE.

The Scheme was launched in October 2012, following the introduction of the Health and Safety (Fees) Regulations 2012, which placed a duty on the HSE to recover its costs from those it regulates. This extended the scope of the HSE's cost recovery powers and allowed it to recoup the costs of any intervention arising from the identification of a material contravention of health and safety law by a dutyholder. Click here to read our full analysis of the Scheme, four years on.

If an inspector identifies serious health and safety failings in the workplace about which they need to write to the dutyholder, then that party has to pay the costs of the HSE visit. If they wish to dispute the amount charged or disagree that there has been a material breach, they can make a written "query" to the HSE.

If the dutyholder is not satisfied with the response to the query and wishes to escalate the matter, then a "dispute" can be raised in writing. Until now, disputes were considered by a panel which consisted of two members from the HSE and one independent person. However, after reviewing the current process the HSE will consult with relevant stakeholders with a view to making the process fully independent.

The announcement comes after some strong words from the Court following the recent application for judicial review by OCS Group UK, who were seeking to have its FFI bill overturned and the HSE's current system for determining appeals quashed on the basis that the HSE acts as "prosecutor, judge and jury". When granting permission to judicially review the Scheme, the Court said, "It is arguable that the HSE is, unlawfully, judge in its own cause when operating the FFI scheme, and that the scheme is either unlawful or being operated in an unlawful manner".

A spokesperson for the HSE said: “HSE has always kept the dispute process under review and following a recent application for a judicial review we believe the time is right to move to a dispute process which is completely independent of HSE.”

The judicial review hearing has now been cancelled, with the parties reaching agreement out of court, set out in a legally binding "consent order". The order states that the query stage of the Scheme will remain largely unchanged. However, the dispute stage will be reformed so the HSE must:

  • Put its allegations about the breach to the dutyholder;
  • Release the evidence that the allegation relies on to the dutyholder; and
  • Allow the business to respond and make submissions.

The decision on whether to uphold the dispute will be made by a new independent three-strong panel, to ensure fairness.

The HSE have confirmed they intend to set up the revised dispute process no later than 1 September 2017 and are currently considering how and when they will consult with stakeholders. Clyde and Co will be preparing responses on behalf of its clients and further details will follow once the timetable for the consultation has been made available. To register your interest, please click here.