1 October 2012, sees the introduction of the Health & Safety Executive’s (“HSE”) new Fee for Intervention (“FFI”) cost recovery scheme, one of the biggest changes to health and safety regulation in recent years. As of today, where an operator is found to be in “material breach” of health and safety law, the operator will be charged for the time spent by the HSE identifying the “material breach” and all work undertaken to ensure that the breach is remedied.
The HSE guidance on the application of FFI (“the Guidance”) states that “every year, a significant number of people are killed or suffer significant injuries from being run over or having vehicles overturned on them in poorly planned or managed transport systems in workplaces. The key to safe transport therefore is ensuring safe drivers, safe sites and safe vehicles”. Operators should therefore expect to feel the full effects of FFI and should take steps to ensure that they have appropriate compliance systems in place to, if at all possible, avoid health and safety breaches.
What constitutes a “material breach”?
A “material breach” is when, in the opinion of the HSE inspector, there is or has been a contravention of health and safety law that requires them to issue notice in writing of that opinion to the dutyholder. The Guidance confirms that this written notice may be by a notification of contravention, an improvement or prohibition notice, or a prosecution.
When deciding whether an operator is in “material breach” of health and safety law, HSE inspectors must apply the Guidance and the HSE’s existing enforcement decision making frameworks; however, perhaps unsurprisingly, the lack of clarity as to what constitutes a “material breach” has caused the industry to raise concerns.
The Guidance does provide the following examples of circumstances that might trigger FFI; however, these examples are only indicative and are not an exhaustive list.
- Not ensuring a safe site e.g. poorly defined traffic routes, obstruction of aisle ways or roadways, poor lighting, uneven surfaces and no separation of pedestrians from vehicles where this is reasonably practicable;
- Not providing safe vehicles e.g. defective steering, brakes, mirrors, lights, and no reversing aids where required; and
- Not ensuring safe drivers e.g. drivers who are neither trained nor competent.
How much will operators have to pay?
From the point at which the FFI is triggered, every moment of the HSE’s time in connection with the “material breach” becomes chargeable. The fee payable by operators, regardless of the size of the operator’s business, is £124 per hour (this fee may change in the future); however, where the HSE engages a third party, such as an engineer or a tachograph analyst, the operator will be charged the actual costs of that third party’s work (not limited to £124 per hour).
The fee is payable for all costs reasonably incurred by the HSE during regulatory work in relation to a “material breach” (including time spent inspecting the operator’s premises and/or vehicles, time spent making phone calls, and time spent preparing and serving improvement or prohibition notices) from identifying the “material breach” up to the point at which the HSE’s intervention in relation to the “material breach” has been concluded or a prosecution is started.
The HSE will issue invoices to operators every two months, Payment is due to the HSE within 30 days of the date of the invoice and the HSE will deal with any failure to pay in accordance with its debt recovery procedures.
Can operators dispute/query an invoice?
Operators will have no control over the time spent by the HSE and, consequently, the expenses incurred and will only discover the extent of their liability once they receive an invoice. Whilst there is no cap on the total amount that the HSE can charge, the fee payable by an operator should reflect costs reasonably incurred by the HSE. If an operator believes that the HSE’s charges are unreasonable or disproportionate, they can query or dispute the invoice. Alternatively, an operator may query or dispute the invoice on the basis that a “material breach” had not been committed.
All initial enquiries about an invoice will be treated as a query for which no fee is payable; however, if operators are not satisfied with the response to their query, they can formally dispute the invoice by writing to the HSE. A fee (based on the FFI hourly rate of £124 multiplied by the time taken to resolve the dispute) will be payable to the HSE for their time spent dealing with any dispute that is not upheld; however, if the dispute is upheld, the HSE’s invoice will be amended or cancelled (or refunded, where payment has already been made).
What should operators do?
The HSE does not need to prosecute an operator in order to issue an FFI invoice. It is therefore possible that the payment of an FFI invoice could be considered to be an admission of liability by the operator, which could potentially be used as evidence against the operator in subsequent health and safety prosecutions. Operators should therefore seek advice before paying an FFI invoice as to how best to deal with it.
Operators should also consider the terms of their insurance policies to check whether they are required to notify their insurers of any FFI invoices issue. Further, in order to protect themselves against the uncertainty of the potentially significant FFI costs that may be generated, operators should consider seeking insurance to cover any FFI costs and/or the costs associated with querying/disputing FFI invoices.
For further information in relation to FFI or for passionate and pragmatic advice and assistance in relation to any aspect of road transport law, contact Laura Hadzik on 0161 828 1849 or 07831 291 538 or email her at firstname.lastname@example.org
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