HSE’s Fee For Intervention - What Businesses Need To Know

In 2012, the Health and Safety (HSE) introduced ‘fee for intervention’ (FFI) under the Health and Safety (Fees) Regulations 2012, which conferred a legal obligation on them to recoup costs for inspecting firms found to have contravened health and safety law. Later, in 2016, the maximum court-fine for businesses found guilty of health and safety offences were substantially raised[PM1] , including the maximum victim surcharge; increased from ￡120m to ￡170m. As a result of these changes, businesses understandably feared [PM2] such regulatory pressures might cripple their coffers. And only very recently, the HSE increased its FFI costs[PM3] , with inspectors now able to charge ￡154 per hour; up from ￡129 per hour.

Recent news, however, suggests that the HSE has struggled to keep pace with its intention to increase compliance pressure. In the reporting year 2018/19, the HSE made a massive 44% fewer prosecutions than the previous year.  This begs the question, why

Why did HSE introduce FFI?

FFI was designed to place the onus to pay for the cost of an HSE inspection onto a business. In other words, it is a ‘cost-recovery’ initiative. Its scope encompasses [PM4] employers, the self-employed, public and limited companies, general, limited and limited liability partnerships, and Crown and public bodies. FFI invoices can be issued by HSE only if their inspectors find a material breach. In this case, a notification of contravention (NoC) will be provided to the business by the inspector, which confirms a breach of health and safety law has been found, the rationale for their opinion, and the fee to be paid. The FFI must be paid within 30 days unless it is disputed. Any dispute must be raised within 21 days of receiving the FFI.

The impact of FFI

Only three years after its introduction, the average cost of an FFI invoice had risen by 40%[PM5] . Over ￡15m in FFI invoices were issued in 2016, representing an increase of nearly a quarter [PM6] on the previous year. This amount fell slightly to just over ￡14m in 2018/19[PM7] , but this is against a cost to HSE of ￡15.6m, resulting in a loss for the regulator. HSE now invoices circa ￡2m each month, with the average being around ￡700. However, some exceptional fees have exceeded ￡10k[PM8] .

In 2016, the HSE saw its budget slashed by 12% from ￡140.9m in 2016/17 to ￡123.4m in 2019/20; this followed further cuts since 2010. In the last two years, budget declines have led to a reduction in the number of frontline inspectors[PM9] , by as much as 25%, therefore blunting the regulatory potency of the HSE. One ex-inspector has been quoted [PM10] as saying, “The team I was in used to be made up of six [inspectors]. Now it’s two and two trainees. Those trainees have to be trained and assessed by the other inspectors, as well as them doing their own work. There aren’t enough experienced inspectors in the role.” As a result of these resource cuts, the threatened impact of FFI costs for businesses in sectors such as construction has not fully materialised. 

This does not mean, however, that businesses can relax. Indeed, according to trade union official and non-executive director of the HSE, Kevin Rowan[PM11] , in half of HSE site visits by inspectors, they discover material breaches.   

Responding to a NoC and FFI invoice

Despite their diminished capacity, it is best to assume that HSE will act quickly in all regards. They may arrive on-site to undertake an inspection without notice, and hence it is vital to be prepared for a visit at any time. During an onsite inspection, they will ask several questions, seek evidence, and observe working practices. Should you then receive a NoC and FFI invoice, time is of the essence. Make sure you read the details of the breach within the NoC and ensure any immediate action necessary is taken accordingly to make safe any identified risk or danger. If you consider that a mistake has been made, or information provided by HSE is incorrect, seek the support of a specialist health and safety lawyer who can quickly assess your case, determine how best to respond to the notification, check if you qualify [PM12] for an exemption/disapplication for FFI, or if you have been invoiced in error. In doing so, it will be essential to determine where liability rests, and if indeed, you are the duty holder. 

There may also be circumstances in which there is more than one duty holder, and hence any payment must be shared. It should be noted that duty holders are not required to make payment for an FFI invoice until such time that a dispute is upheld by the HSE’s disputes panel. In addition, HSE must repay the amount if it is later viewed as being paid in error.

Remember, action by the HSE is not just about cost; it is also about reputation, especially for serious breaches which are referred to the Courts. A comprehensive review of your matter in the context of the current H&S law, recent cases, and knowledge of how the HSE handle breaches of a similar nature will make the difference between a rapid and amicable outcome and a PR/financial headache. 

Tanveer Qureshi specialises in health and safety and environment law.  If you require legal representation, please contact Tanveer directly at [email protected] or via his chambers, 4-5 Gray's Inn Square at [email protected].

 [PM1]https://www.hse.gov.uk/enforce/enforcementguide/court/sentencing-penalties.htm

 [PM2]https://www.constructionnews.co.uk/news/contractors-news/hs-penalties-could-bankrupt-companies-says-balfour-ceo-17-08-2016/

 [PM3]https://www.britsafe.org/publications/safety-management-magazine/safety-management-magazine/2019/hse-increases-fee-for-intervention-ffi-charges-by-almost-20-per-cent/

 [PM4]https://www.hse.gov.uk/fee-for-intervention/what-is-ffi.htm

 [PM5]https://www.constructionmanagermagazine.com/news/fees-intervention-rise-co7ver-h7se-co7sts/

 [PM6]https://www.designingbuildings.co.uk/wiki/Fee_for_intervention_FFI

 [PM7]https://www.hse.gov.uk/aboutus/reports/ara-2018-19.pdf

 [PM8]https://www.constructionmanagermagazine.com/opinion/can-we-make-ffi-scheme-work-better-construction-in/

 [PM9]https://www.shponline.co.uk/uncategorized/hse-inspector-numbers-fall-25/

 [PM10]https://www.constructionnews.co.uk/health-and-safety/alls-not-fine-hse-soaring-penalties-hide-falling-prosecutions-04-11-2019/

 [PM11]https://www.constructionnews.co.uk/health-and-safety/alls-not-fine-hse-soaring-penalties-hide-falling-prosecutions-04-11-2019/

 [PM12]https://www.hse.gov.uk/pubns/hse47.pdf