Vikki Woodfine, Regulatory Associate at DWF LLP, looks at the Health and Safety Executive’s Fee for Intervention scheme in practice.

Introduction

The unannounced visit by a Health and Safety Executive (HSE) inspector has always been something the majority of site managers, given the option, would prefer not to have.

Even where construction companies have a good relationship with their local inspector, the chances are that the inspector will appear at an inconvenient moment when the site manager is desperately needed elsewhere on site.

It is always a possibility that a visiting HSE inspector will spot something going wrong on site that has never happened before (to the site manager’s knowledge). A brief example of bad behaviour in front of an inspector could then result in a discussion between site management and the inspector as to whether enforcement action is necessary. Previously, the chances were that, as long as the issue was not too serious, some friendly, corrective advice would be given and the inspector would call in again sometime in the future to assess progress.

Fee for Intervention

The landscape, however, is now changing. Following the introduction of the Health and Safety (Fees) Regulations 2012, which launched the HSE’s new cost recovery scheme known as Fee for Intervention (FFI) in October 2012, the relationship between businesses and their local HSE inspector has shifted.

No longer can inspectors offer friendly advice to site managers on correcting what may only be a relatively minor issue; such advice must now be accompanied by an invoice for the time that the inspector spent on site identifying and investigating the problem (known as a “material breach”) until he or she is satisfied that the breach has been remedied.

FFI is triggered when, in the opinion of an HSE inspector, there is or has been a material breach of health and safety law that requires the HSE to issue notice, in writing (known as a “notice of contravention”) of that opinion to the duty holder. The receiving company will become liable to pay the HSE’s costs until it has corrected the issues with the support of the HSE.

The £124 per hour charge for the inspector’s time is classed as a civil penalty rather than a criminal fine and, unlike prohibition and improvement notices, they can only be issued to employers — ie not individuals. However, there are potential repercussions down the line, which could impact on businesses. Companies need to be mindful that accepting and paying invoices, without question, could be viewed as accepting liability. Payment of FFI costs could be used as evidence, either in a subsequent health and safety prosecution or in a personal injury case, that the business has accepted liability, placing insurers in a difficult position in defending any personal injury claim and potentially voiding insurance policies.

Issued invoices

Since its introduction, FFI has generated significant revenue for the HSE, with the period between 1 December 2012 and 31 January 2013 (the second invoice run) seeing more than £850,000 in invoices being issued. During that period, 60% of all HSE inspections resulted in the business being charged, with more than 1800 invoices raised. In the third batch of invoices issued (for the period 1 February 2013 to 31 March 2013), the FFI scheme yielded around £1,089,000 in receipts. This signifies a £232,000 increase on the totals collected in the preceding period, and a massive 82% of proactive inspections resulted in time being charged to businesses.

The HSE is following up more reports under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR), as the number of invoices issued as a result of RIDDOR–reportable incidents has vastly increased.

Businesses submitting RIDDOR reports can, therefore, expect to be visited by the HSE and should ensure that they have their house in order if they are to minimise the time the HSE spends with them.

Minimising exposure

The company’s position in establishing its defence or raising a challenge starts with the site manager. Site managers hold the key to how an FFI invoice is issued and, ultimately, dealt with.

Certain actions taken by site managers can ensure that the company is in possession of all the facts and is able to make informed decisions about any challenge it may or may not wish to bring against invoices.

Site managers should therefore ensure the following.

  • A robust reporting process is in place to ensure that details of the inspector’s visit are accurately recorded and fed back to head office. When an inspector arrives, signs in and receives an induction/current hazard information briefing, it is advisable to commence the inspection straight away.

  • Detailed notes be taken of the visit, including any discussions, observations and potential issues. The notes should be supported by photographs of each of the areas discussed to help senior management understand the conditions on site at the time of the visit.

  • To not be afraid to respectfully challenge an inspector. Good site managers know their roles, sites and subcontractors well and should not be fearful of questioning an inspector about his or her actions and decisions. For example, some inspectors issue an FFI “notice of contravention” to the principal contractor almost by default, given that they are ultimately responsible for the site, but if the site manager feels that there is a strong case for it to be issued to a subcontractor, he or she should raise the issue.

The detailed information gathered by the site manager should then be copied and sent to head office, who should take appropriate advice when the invoice arrives.

What to look out for

When FFI notices are received from the HSE, businesses should carefully review the detail of the alleged material breach. Where the business disagrees with any listed breaches (or elements of these), this concern must be raised and the issuing inspector challenged.

Once the invoice is received, the next step is to carefully review the invoice and the time being charged. Examples have been seen of multiple HSE visits on different sites all being bundled together to form one large invoice to the duty holder. This can prove difficult to keep track of precisely what the business is being charged for and to which breaches the time being charged relates to.

Therefore, it is recommended that businesses seek a detailed breakdown of the time on the invoice to consider the following.

  • The time incurred and the actual visit the time relates to.

  • How this is further broken down — ensure that the invoice only charges for the time relating to the material breach(es) rather than the entirety of the visit.

  • Whether the charges are reasonable — for example, does the time incurred appear to be fair and justified or are you being charged for multiple inspectors or trainees.

  • Whether the costs should be split between other duty holders.

Final thoughts

As FFI gains momentum, the numbers of invoices and the amount of revenue generated for the HSE is steadily increasing. Businesses should think before automatically paying the fees and thought should be given in advance to the strategy a business will take if it is notified of its potential liability under FFI. Site managers should be trained in how to deal with unannounced visits and should understand the consequences of low-level breaches, which would previously have meant a friendly word of advice, but could now trigger substantial invoices.

It is no secret that the construction industry is actively targeted by the HSE and this has been reflected in the invoice runs so far, with around one-third of all invoices being issued in this sector. With the HSE plan of work projecting that the construction industry is set to remain high on its priority list, and with an additional “construction site safety initiative” set to commence in September 2013, sites are likely to remain a firm target for unannounced visits, so preparation is key.

Last reviewed 1 August 2013