Following an Independent Review of the Fee for Intervention regime, we review both the findings of the report and the ongoing impact for businesses within the industry.
This month has seen the publication of an Independent Review Panel’s report into the first 18 months’ experience under the Fee For Intervention (FFI) regime. More than simply a periodic review of its operation, the Panel was commissioned in direct response to concerns about the operation and future of the scheme aired during an earlier consultation process; concerns which culminated in a statement that unless the link between fines and funding could be removed, or the benefits shown to outweigh the detrimental effect, FFI should be phased out.
FFI is here to stay
After months of industry wide anticipation, this month’s Report confirms that FFI is here to stay. Not without clear concerns over its implementation and, importantly, open recognition of the harm that it has done to the relationship with dutyholders, it would appear that the benefits are deemed to outweigh any detriment.
Whilst understandable in the current climate of public expenditure, there is a sense that the financial imperatives of the regime were necessarily at the fore of any consideration. Indeed, recognition was given to the fact that whilst there are challenges associated with FFI, it has proven effective in shifting the cost of health and safety regulation from the public purse to those businesses that break health and safety laws.
More tellingly perhaps, no viable alternative to FFI could be envisaged and, with the HSE’s budget already planned around those expected revenues, any shortfall would have to be made up from savings; the only place to make the kind of savings required being reductions in staff.
With confirmation now being provided that the FFI regime is here to stay and with expected revenues of in excess of £10 million year on year, business across all industries and in all shapes and sizes need take note:
- Our experience of the FFI regime upon smaller organisations is that the sums raised in invoices can pose a significant financial penalty relative to the size of company. This could be the reason why the HSE has reported that such businesses are more likely to report that FFI has influenced ongoing health and safety management.
- Whilst the perception of risk posed by FFI invoices is not quite as high for medium and larger sized businesses, an understanding of the implications of an invoice demonstrates that they are no less potent for them.
Although it may be commercially attractive to settle such sums following consideration of the time and resource in challenging them, businesses should be aware of the short and long term implications of doing so.
Unless careful, payment of a fee for intervention invoice amounts to a tacit acceptance by an organisation of the alleged breach to which it is in response. Consequently it is not difficult to see how this acceptance could have implications for any ongoing investigation by the HSE and potential enforcement action arising out of those alleged breaches.
The wider implications of payment are more difficult to appreciate. Payment of FFI invoices can begin to build a profile of a business’ health and safety performance, which can in turn be reviewed by Inspectors and may be referenced to inform future targeted inspections and also decisions with regards to any enforcement action to be taken against organisations.
A history of FFI invoices can also be a factor, not just in the HSE’s decision making, but within criminal courts, with the HSE’s chief legal adviser failing to rule out their use as bad character evidence in prosecutions arising out of different facts to those triggering the previous FFI invoice.
Taking the above into consideration and with the Report confirming that the FFI is here to stay and in substantially the same format as at present, business should continue to be alive to the issues that the regime poses.
We strongly advise that upon receipt of a FFI invoice businesses look to the following:
- Conduct your own investigation into the circumstances giving rise to the alleged material breach – do you consider yourself to be in breach?
- Weigh the commercial advantages of settling the invoice against the short and long term implications for the business; make sure the decision is an informed one.
- Consider whether to implement the free query process for challenging such invoices and, if unsuccessful, those formal dispute procedures.
Author: Nicholas BarkerThis 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.