25 April 2019

Since 2012, the Health and Safety Executive has been required to charge duty holders for the work which they have undertaken in investigating and enforcing material breaches of Health and Safety law. The stated aim of the scheme is to shift costs incurred by the HSE from tax-payers on to non-compliant duty holders.

The HSE can, and will, issue a Fee for Intervention (“FFI”) to a duty holder where they are of the view that the duty holder has materially breached Health and Safety law and they have notified the duty holder in writing of that opinion.

Up until 6 April 2019, the hourly rate for this was £129 per hour. An increase was inevitable; however, the new rate of £154 per hour is a bold leap for the HSE.

With almost a 20% increase in the hourly rate, non-compliant duty holders will now face significantly higher financial penalties for non-compliance, even before the HSE has reported the matter to the Crown Office and Procurator Fiscal Service. As few insurers will indemnify the FFI cost, companies will be hit directly with these costs. In complex cases, the FFI can exceed the fines Courts ultimately impose.

Can an FFI be challenged?

If a duty holder does not agree that they are in material breach of Health and Safety law, or if they do not agree that the work being billed by the HSE reflects the work carried out by them, or ought to have been apportioned with another duty holder, there is a two-step process for disputing the FFI. Traditionally, the statistics for queries (stage one) or disputes (stage two) have been less than encouraging. The first stage in the process is free; the second involves potential award of costs against the duty holder if it is unsuccessful. It is perhaps unsurprising therefore that most businesses, so the statistics indicate, are opting to absorb this cost at an early stage, perhaps for fear of prodding a sleeping beast.

This increased rate may encourage a more robust approach by businesses. In all cases, we would counsel that serious consideration must be given as to whether there are any grounds to dispute the FFI. Duty holders have only 21 days from the date of the FFI invoice to lodge their initial challenge, so it pays to seek that advice early.

The sting in the tail, however, is that if a duty-holder requires to formally dispute the FFI, proceeding to stage two with the risk of costs following success, an unsuccessful duty-holder may find itself subject to a larger bill for rejected disputes. In complex cases where, for example, there is an argument of ill-judged apportionment between duty holders, that risk may be worth taking financially.

BTO regularly advises on all aspects of FFI so please do contact us if you, or your policyholder, require advice.

Contact: Amy Anderson, Senior Solicitor, aan@bto.co.uk T: 0141 221 8012