Fee For Intervention: What Will It Cost?

Today sees the introduction of the HSE's Fee for Intervention Scheme (the "Scheme") extending the regulator's cost recovery powers. Whilst this change has been the subject of minimal publicity from the HSE, its potential consequences are perhaps wider than anticipated and should certainly receive due consideration from businesses likely to be affected. This article sets out the key provisions of the newly issued guidance and provides some food for thought for businesses looking to identify how they can respond to this new regime.

What does the Scheme do?

The Scheme shifts the financial burden of investigating material breaches of health and safety law from the tax payer on to the errant duty holder. Launching the FFI scheme on 28 September 2012, the HSE's Chief Executive Geoffrey Podger said:

"The most basic safety mistakes in the workplace can devastate lives and result in real costs to industry. It is right that those who fail to meet their legal obligations should pay HSE's costs rather than the public purse having to do so."

The Scheme will impose a positive duty upon the HSE to recover the costs of any intervention that leads to the identification of a contravention of health and safety law by a duty holder. For further details, please see our previous update, "Fees for intervention: guidance released 20 June 2012".

Does the Scheme apply to my business?

The Scheme applies to all HSE enforced businesses. Whilst the HSE will concentrate proactive inspection time on the construction, waste and recycling and manufacturing industries, the reality is that the Scheme will apply to any business that it inspects or investigates and finds to be in material breach of the law.

The Scheme does not apply to those in sectors enforced by other regulators (e.g. local authorities), nor does it apply to the self-employed who only put themselves at risk or to individual employees.

What is a material breach?

The Scheme will be engaged when, "in the opinion of the...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 duty holder". Inspectors will continue to use the well established principles of the Enforcement Management Model when reaching decisions, albeit the Guidance accompanying the Scheme provides some illustration of, "what a material breach might look like in practice". This loyalty to the current method of decision making promises a targeted and...