Fee for intervention: update

The announcement by the Health and Safety Executive (HSE) that it is to consult on proposals to make fully independent the dispute process for its cost recovery scheme, known as Fee for Intervention (FFI), is welcomed and long overdue.

The scheme

Introduced in 2012, FFI allows the HSE to recover the costs of its regulatory work based on an hourly rate (currently £129) from duty holders who are considered by the Inspector to be in "material breach" of health and safety legislation.

The disputes process

The scheme devised by the HSE gives power to the HSE to sit in judgement of disputes through its own disputes panel.

Since its introduction, the scheme has been highly controversial for a number of reasons. These include the HSE being required by statute to devise a dispute process for dealing with FFI disputes, and the HSE then devising a process that gives itself the power to determine disputes.

Such a dispute process in which the HSE has a vested interest and which is adjudicated by HSE is manifestly unfair because it entitles the HSE to act as a judge in its own cause thereby contravening the fundamental principle of natural justice and Article 6 ECHR.

The judgements given by the FFI disputes panel to date are often vague and self- serving. Further, if a party disagrees with the panel’s decision, there is no right of appeal to any independent tribunal.

Those disputing fees under the current scheme are permitted very limited involvement in the procedure. They may not:

  • Appear before the panel
  • Call witnesses or ask questions of HSE and Health and Safety Laboratory personnel.
  • They are often provided with very limited information and justification for the fees raised and upon which a party may wish to make submissions.

In the face of challenge

The announcement by the HSE is made in the face of judicial review challenges progressed by our health and safety team disputing the lawfulness of the scheme devised, implemented and operated by the HSE and it comes ahead of a judicial review hearing brought by OCS Group UK due to be heard by the Administrative Court in May this year. The announcement at this time presents a significant climb down by the HSE on the lawfulness of its scheme.

These legal challenges and the HSE’s plans to review the scheme are likely to have a significant impact on the extent of HSE’s charging for FFI and the way in which disputes will be handled in the future.

We await eagerly the consultation process proposed by HSE and look forward to the implementation of a fully transparent, fair and independent process by which disputes over FFI are determined in the future.

It is not yet known when HSE will launch its consultation process and how long it will take. We will provide further update.