Fee for Intervention (FFI) – What is it? Part 3

In our previous blog we covered the practical aspect of the inspector being on your site and carrying out their inspection.  We covered the importance of being prepared, the type of questions that might be asked and the formal and informal interviews process.  In this blog we will move away slightly from the practical aspect of the visit and look at the HSE fee for intervention scheme.

What is fee for intervention (FFI)?

It was introduced by the Health and Safety (Fees) Regulations 2012 and allows an HSE inspector to invoice you for time incurred dealing with any “material breaches” of legislation which they identify when on site.  This is when, in the opinion of the inspector, there has been a breach of health and safety law which requires them to make a formal intervention through a letter, e-mail, instant visit report, notice or prosecution.

The current rate is £154 per hour and tends to increase every year.  The same fee is charged regardless of the seniority of the inspector.  This system means that a business could be hit with a significant bill even though the breach isn’t worthy of prosecution.

Note: It only applies to enforcement by the HSE, not by Local Authorities.

In what circumstances will fees arise under FFI?

• Fees will only be charged when there is a material breach of the law.  Inspectors must consider each non-compliance they discover during an inspection and decide whether it constitutes a material breach.
• If an inspector gives advice whether this is verbal or written no fee will be charged.
• If an inspector identifies a material breach at any point during their inspection, you will be charged for the entire time that they’re on your premises, i.e. from the point of arrival. The HSE says that this is necessary because the whole visit is used by the inspector to assess the organisation’s ability to manage risk and to come to a conclusion about the action the employer or other relevant party needs to take.
• Inspectors will also charge for any further time spent either in the office or on repeat visits. Charges are applied in six-minute increments and recipients will be given 30 days to pay invoices.  The bill keeps on growing until the inspector is satisfied that the breach has been rectified.
• Where the HSE decides to prosecute, time spent after the decision to do so will be included in any claim for prosecution costs made to the court, i.e. you shouldn’t receive a fee for intervention bill for it.  But it’s worth noting that the time spent in the build up to that decision is likely to be charged.

Note: Inspectors are obliged to apply internal HSE guidance when deciding whether there is a material breach. This is set out within their Enforcement Policy Statement and Enforcement Management Model. These documents are publicly available, so you can use them to check that an inspector has played fair and, if appropriate, to challenge what’s been done. 

Can individuals face fee for intervention fees?

Effectively, individual employees shouldn’t find themselves with a bill even if they are guilty of a material breach of legislation, because fee for intervention does not apply to them.  In the case of breaches by directors and other officers of a company, the guidance points towards the company being charged rather than the individual. This is because breaches of ss.36-37 of the Health and Safety at Work etc. Act 1974 are excluded from charging on a technicality, and these sections are most commonly used to charge directors etc.

HSE fee for intervention doesn’t apply to the self-employed in circumstances where their actions have only put themselves at risk of injury, as opposed to putting others at risk, e.g. members of the public.

Can you appeal?

• Yes. If you don’t agree that you have broken the law, or don’t accept the amount, you can raise a query.  In the first instance this is assessed for free by the FFI team.  You can contact them by sending an e-mail.  If you are still not satisfied you can escalate your query to a dispute. 
• If you lost your dispute it could be costly. You would be charged for all HSE staff time involved in responding to the dispute.  
• There is a fully independent fee for intervention dispute process independent of the HSE since September 2017.  If you win your  dispute, all fees currently paid will be refunded.  Current information on fees and disputes is located here

Closing remarks

If you receive a visit from a local authority inspector then the FFI scheme does not apply.  Once a material breach is found the charges from the HSE will apply from the beginning of the visit through to the point the problem is rectified.

The next blog in the series will provide you with 12 tips to use on the day of the inspector’s visit.