Fee for Intervention (FFI) is the Health and Safety Executive’s (HSE) costs recovery scheme introduced on 1 October 2012. Between October 2012 and July 2013, the HSE recovered over £5.5 million from businesses with an increasing numbers of invoices being issued each month. The average cost of a single FI invoice was between £428.22 and £522.84.
When might you get an invoice?
The HSE now has a duty to recover its costs by invoicing businesses regulated by the HSE found to be in material breach of health and safety law.
What amounts to a material breach’? There is no statutory definition but HSE guidance says a material breach arises when, in the opinion of the HSE inspector, there is a contravention of health and safety law that requires the issue of a written notice (for example, a letter, improvement/prohibition notice or prosecution). The important words are “in the opinion of the HSE inspector”. This is not a criminal court making a decision beyond reasonable doubt or civil court acting on the balance of probabilities but, presumably, an informed opinion. Although HSE inspectors make decisions in accordance with published enforcement guidelines, ultimately it is down to the individual inspector to decide whether a breach is material. Even before FFI came into effect, there was a that the HSE could be seen as investigator, prosecutor, judge and jury and previously constructive relationships between businesses and HSE inspectors would be undermined.
The question is have these concerns been realised?
Unfortunately, it appears so. On 9 January 2014, the Triennial Review of the HSE was published. Its author, Martin Temple, was not tasked with looking specifically at FFI but felt “compelled” to mention it. He said that he had received “clear evidence” that FFI was having a negative impact on relationships between businesses and HSE inspectors and that businesses were now more reluctant to seek advice. He went so far as to say that unless the link between what were perceived as “fines” and HSE funding could be removed or the benefits of the scheme shown to outweigh the detrimental effects, then it should be phased out. FFI is due to be reviewed shortly but, for the time being, remains in place.
Whilst we would not discourage a good working relationship between businesses and any regulator, the reality is that if you are considering seeking advice from the HSE, you will need to weigh up the benefits of doing so against the risk of being issued with a FFI invoice.
What should you do if you receive a FFI invoice?
You need to think carefully before you pay it. The fact that your business has paid a FFI invoice might be used against it in any subsequent criminal or civil proceedings. A criminal conviction might impact on your business’ reputation and ability to get new work. A successful civil claim may well lead to increased insurance premiums. You might want to consider appealing the invoice (on the grounds that the business did not materially breach the law, the HSE did not comply with procedure or because you believe the costs to be too high). There are however time limits for doing so. You will also have to pay additional costs if you lose an appeal. If you are in any doubt as to the implications of paying the invoice, or how the appeal procedure works then you should take legal advice.
If you have any concerns about health and safety practices in your business, it is advisable to get them sorted sooner rather than later. It is much better to invest time and money on your own terms, rather than when the HSE dictates. If your business operates from several sites, ensure that HSE visits are dealt with centrally, so that you can implement any improvements identified by a visit and avoid invoices being issued for different sites. You will also need to ensure your accounts department recognise a HSE invoice, so they don’t just go ahead and pay it.
If you have received an invoice and need help or want advice about a specific health and safety issue, then please contact me.