If you have been subject to a Fee For Intervention bill and wished you had challenged it, read on!
We recently explored the Judicial Review case of HSE’s Fee For Intervention dispute process. A consequence was the HSE agreed to look at changing the process for challenging such fees. (It entered into a legal agreement with OCS Group UK to head off a judicial review.)
As of 1st September 2017, the HSE launched a new procedure for challenging Fees for Intervention (“FFI”) bills.
What is a Fee for Intervention scheme?
It enables the HSE to charge for some enforcement activities. This means companies are liable for fees where a material breach of health and safety laws has occurred and an Inspector has got involved.
A breach is considered material if it is serious enough to notify the offending party in writing. Thereafter, the company receives a Notification of Contravention, which triggers an FFI bill based on the inspector’s time.
So what has changed?
Now there is an independent panel. It assesses written evidence when a dispute over a Notification of Contravention arises. The HSE is required to disclose information on how inspectors determined the organisations have been in “material breach” of the law.
Although the panel will decide most of the disputes by examining written evidence, it does have the discretion to call a meeting. Such a meeting will be held in exceptional circumstances with the HSE and duty holder both in attendance. Then the panel can hear arguments from both parties before coming to a decision.
What if the bill is £1000 or less?
A separate process is to be established. This will involve consideration by a non-lawyer panel member based on written submissions alone. As no meeting is required, it will reduce costs and burdens on businesses. The process will be the same for instances where there is no dispute as to material breach but only the amount of the bill.
Previously the regulator was criticised for being “prosecutor, judge and jury” when deciding on the legitimacy of a Notification of Contravention. This was mainly due to the fact the disputes process comprised a panel of two senior HSE managers and an independent representative.
Transparency in the Fee for Intervention Process
There is general support for the adjudication panel comprising a lawyer and two others with practical experience of health and safety management. However, the HSE has stipulated they will choose the chair from the Attorney General’s civil panel. This is a list of approved lawyers who have undertaken work for the government and have the right level of expertise.
The HSE must now release the same information to duty holders that the inspector relied on to determine the existence of a material breach. This includes information on the alleged contravention, how they formed their opinion, evidence upon which the opinion is based and the HSE’s response to issues raised by the duty holder when requesting the dispute.
What is the end result?
To provide greater clarity on what information the HSE will provide to businesses that seek to make appropriate representations to the dispute panel.
If you require further assistance in relation to this revised process, the HSE has also released new guidance and FFI webpages. If that’s too boring -you could always pick up the phone and give us a call! 01224 900025