In February, the Health and Safety Executive (HSE) announced that it is to consult on proposals to make its Fee for Intervention scheme dispute process fully independent. This announcement came hot on the heels of a judicial review challenge over the appeal process being dropped weeks before the scheduled hearing following agreement being reached between the HSE and the applicant, OCS Group UK.
Fee for Intervention
The Fee for Intervention scheme (FFI), was introduced in October 2012, and was designed to shift the cost of regulating workplace health and safety from the public purse to those operating in breach of the law.
Where an HSE inspector identifies serious health and safety failings in the workplace (a ‘material breach’) which requires service of a notice on a dutyholder to rectify the failing, then that dutyholder has to pay the costs of the HSE visit. Where the inspector simply issues verbal advice no charge is levelled.
A dutyholder can appeal a decision but the appeals process remains within the HSE. The primary review is undertaken by HSE senior management and the further appeal stage is to a panel that consists of senior HSE staff and an external (independent) business representative. Any unsuccessful appeals costs must be paid by the dutyholder.
At the heart of the Judicial Review application was the complaint that the HSE was in effect the judge in its own cause when determining appeals. Where the outcome of the appeal process may bolster income for the HSE the apparent lack of independence is particularly troubling.
The writing may well have been on the wall for the appeal process given the High Court’s comments at the permission stage of the judicial review. Mr Justice Kerr observed that: “It is arguable that the HSE is, unlawfully, judge in its own cause when operating the FFI scheme; and that the scheme is either unlawful or being operated in an unlawful manner”.
Following an albeit incomplete judicial review process, the HSE announced that it will consult with ‘relevant stakeholders’ with a view to making the process independent. A spokesperson for the HSE said: “HSE has always kept the dispute process under review and … we believe the time is right to move to a dispute process which is completely independent of HSE”.
The FFI scheme has been dogged by criticism since its implementation over four years ago. Many in the commercial sector have criticized the scheme for harming the relationship between businesses and the HSE. For those in business, and in particular SMEs, it became increasingly difficult to see the HSE as assisting them to improve their Health and Safety in the context of the scheme. Further criticism has concerned the fact that the sums recovered have fallen well short of anticipated levels.
A change in the process now seems certain. The real question is whether the HSE will use this as an opportunity for a wholesale review of the scheme and how far reaching any change will be.