Under the new Fee for Intervention (FFI) guidelines, which will come into effect in October 2012, a new cost will be incurred directly by businesses if a contravention (ie a failure to observe health and safety law requiring a formal action) is discovered during a HSE inspection or investigation.
In a radical new move. the hourly rate is now set at £124 and if the Health and Safety Laboratory or another third party’s involvement is required, then the costs of that input will also be recovered from the duty holder. The business will continue to accrue FFI until it has corrected the issues with the support of the HSE. Commenting on the new guidelines, Steffan Groch, DWF regulatory partner, said: “The FFI regulations are 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.
“The revised guidelines ultimately give the HSE power to decide when there has been a material breach. 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’. “Depending on experience and style, some inspectors may take longer than others to complete the investigation, which will undoubtedly lead to discrepancies across the board, meaning some businesses could pay much more than others.
“Apart from knowing that the hourly rate will be £124, businesses will have no way of knowing what the final bill will come to until the very end of the case. What’s more, there appears to be no room for discussion or negotiations until this stage either, as the first time that a business can raise an objection is when they receive the invoice for the investigation.”
“Ultimately, it is smaller businesses that are going to suffer as a result of the FFI regulation. Considering the number of SMEs that are regularly investigated by the HSE, there is no additional support or help offered, nor is there any means testing available to determine whether a business will be able to pay”
“Conversely, bigger businesses may be able to benefit by utilising the HSE as a more cost effective and straight forwarded safety consultancy than their previous advisers, putting them at an unfair advantage to their smaller counterparts. “The HSE needs 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.”