HSE confirms plans to start cost recovery scheme in October

The Health and Safety Executive has confirmed plans to start its controversial cost recovery scheme, Fee for Intervention, from 1 October 2012 and published guidance on how it will work in practice.

The scheme, whose introduction requires Parliamentary approval, will see investigation and enforcement costs recovered from those found to have committed a material breach of health and safety laws.

A material breach is, when in the opinion of the HSE inspector, there has been a contravention of health and safety law that is serious enough to require them to notify the person in material breach of that opinion in writing.

The hourly rate has been set at £124. If the Health and Safety Laboratory or another third party’s involvement is required, then the costs of that input will also be recovered.

“Law-abiding businesses will be free from costs and will not pay a fee,” the HSE insisted, adding that it had worked with industry representatives on shaping the final form of the scheme.

A copy of the HSE's guidance can be obtained here. It provides examples of material breaches but does not cover every scenario where FFI might apply. The guidance also explains the process for handling queries and disputed invoices.

Gordon MacDonald, the regulator’s programme director, said: "Confirming the date for the start of Fee For Intervention and publishing the guidance will give dutyholders clarity and certainty about the start of the scheme and what they can expect.

"It is right that those who break the law should pay their fair share of the costs to put things right - and not the public purse. Firms who manage workplace risks properly will not pay."

The HSE claimed that the cost recovery scheme would encourage businesses and organisations to comply in the first place or put matters right quickly when they do not.

The regulator also suggested that the scheme would discourage those who undercut their competitors by not complying with the law.

But Steffan Groch, regulatory partner at law firm DWF, warned that the FFI regulations would be a worry, especially for smaller businesses.

“The HSE is there to advise businesses, but there may now be a real fear among some that if they interact with the body, they may risk being penalised if they are found to not be fully adhering to the law,” he said.

Groch pointed out that the revised guidelines ultimately gave the HSE power to decide when there has been a material breach.

He said: “The existing Enforcement Management Model states that the body must operate with ‘proportionality’ and ‘consistency’, however, it is not clear how these principles will work alongside the new FFI regulation as it will ultimately be up to each individual inspector to determine the level of investigation they feel is sufficient to identify and remedy a breach.

“There is concern that the principles are subjective, leaving lots of room for movement. There is also the worry that the HSE could exploit the guidelines, using them to create an additional revenue stream and a way of ‘paying their way’.”

He warned of potential discrepancies as a result of the different experience and style of inspectors, saying this could lead to some businesses paying more than others. Businesses may also have no way of knowing what the final bill will be.

Groch called on the HSE to lay out standards so that the procedures are transparent and fair for all businesses. “If it fails to do so, it jeopardises its relationships with businesses of all sizes, which traditionally turn to the body for support and help, as they will be dissuaded to get in touch with the body for fear of prompting an investigation and incurring a hefty bill,” he argued.