Little over three months into the implementation of its Fee for Intervention (FFI) scheme, provisional statistics obtained from the Health & Safety Executive (HSE) under the Freedom of Information Act show that they have been busy at work.
As we had anticipated, there appears to have been a particular focus on the construction sector; our Freedom of Information request revealed that of 903 premises against which the HSE have recorded FFI time 373 of those are accounted for by the Construction sector. This is compounded by the fact that transient construction work is recorded against the head office address for the relevant duty holder, meaning that the number of construction sites at which a FFI time has been recorded is likely to be higher than that figure provided. Whether this can be attributed to poor compliance with legal obligations or simply being an easy target for inspectors, operators in this sector in particular should beware. However, while there may be a particular focus on construction, details of the number of premises against which the HSE have recorded FFI time between 1 October and 30 November 2012 shows that there has been work done across all industry sectors.
What is FFI?
If the HSE takes the decision to notify a business in writing that a material safety breach has occurred, the business will be charged for HSE’s time spent identifying and investigating the breach and assisting the dutyholder to put things right. FFI is one of the biggest changes to the health and safety landscape in recent years and all businesses should be prepared for how FFI might affect them.
FFI is triggered when, in the opinion of a HSE Inspector, there is or has been a material breach of health and safety law that requires the HSE to issue notice in writing of that opinion to the dutyholder. From this point, a business will become liable for the HSE’s costs until it has corrected the issues with the support of the HSE.
From the moment FFI is triggered, every minute of time that the HSE spend on a matter becomes chargeable to a business at a rate of £124 per hour. What is more, if the HSE engages a third party expert to assist, the dutyholder will be charged the full extent of those third party’s fees, not limited to £124 p/h. These fees could run into thousands of pounds and yet businesses would have no control over the time or expenses incurred by the HSE and would only discover the extent of their liability once they receive the HSE’s invoice.
Estimations as to the likely costs that businesses may face are wide ranging. Some suggest that costs may start from £750 for a letter, increasing to £1500 where an enforcement notice is served. However, such rough estimates are unlikely to be much help to businesses, who will face the uncertainty of not knowing how much time the HSE has spent on their file until they receive the invoice. Let’s not forget that the HSE do not need to convict a business to issue a FFI invoice. They don’t even need to criminally charge a business to seek to recover investigation costs!
What can you do to prepare for FFI?
Businesses should be aware that there is the option of appeal if they find themselves issued with one of the HSE’s invoices. While there is no cap on the amount the HSE can charge, the fees payable by a business are subject to the caveat that all of the HSE’s costs/time should be reasonably incurred. Therefore, a dutyholder could lodge an appeal if they believe that the HSE’s costs were unreasonable or disproportionate. A business might also decide to appeal on the basis that it does not believe that a material breach had been committed in the first place to have triggered FFI.
Many businesses may take the view that it is not worth the hassle of challenging the FFI invoice if the cost is relatively low. However, businesses should be aware of the repercussions of accepting and paying the invoice without question. The worrying possibility is that payment of these FFI costs could be used as evidence, either in a subsequent health and safety prosecution or in personal injury cases, that the business has accepted liability. Businesses should therefore think before paying the fees blindly and thought should be given in advance to the strategy a business will take if it is notified of its potential liability under FFI.
Businesses are advised to check the terms of their insurance policies and consider whether they would be required to tell their insurers if they receive a notice that FFI has been triggered. Additionally, businesses might want to seek insurance that covers any FFI costs, or that includes the costs associated with challenging the invoices. You can clearly see the risk of accepting an FFI invoice and the effect that this could have on a business and insurer if a related personal injury compensation claim is received later.
If you have any questions or would like more information, please contact Joanne Witheford, Solicitor, Litigation at Joanne.Witheford@dwf.co.uk or on 0161 838 0108This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.