BSG (Building Safety Group), the UK’s largest construction safety group, issues comment on the on the recent announcement from the Health & Safety Executive (HSE) that it will consult on plans to make the process for disputing Fee for Intervention (FFI) notices “fully independent”.

The HSE announced on 9th February that it is to consult on proposals to make its cost recovery scheme dispute process fully independent. The move follows growing criticism of the cost recovery initiative, as well as an upcoming judicial review this summer that could have thrown the legality of the scheme and its appeals process into disarray. If an inspector identifies serious health and safety failings in the workplace about which they need to write to the Dutyholder, then that Dutyholder has to pay the costs of the HSE visit. If the inspector simply issues verbal advice there is no charge. If there is disagreement on HSE’s decision the Dutyholder can dispute it.

Until now, disputes were considered by a panel which consisted of two members from HSE and one independent person. However, after reviewing the current process HSE will consult with relevant stakeholders with a view to making the process fully independent.

The Fee for Intervention (FFI) scheme was introduced in October 2012 in an effort to shift the cost of regulating workplace health and safety from the public purse, to businesses  – who were fined for breach of workplace safety laws, to recover the costs of the HSE investigation.

A spokesperson for HSE said: “HSE has always kept the dispute process under review and following a recent application for a judicial review we believe the time is right to move to a dispute process which is completely independent of HSE.”

*Figures released earlier in January by Pinsent Masons found in the last year the HSE charged businesses £15m under the scheme, an increase of 23% from £12m the year before. However, even with the £15m recovered, according to HSE accounts and data compiled by Pinsent Masons, the costs of administering the scheme had also been high. The scheme fell short by £2.7m in 2015/16, which represents an increase of 53% on the shortfall of £1.8m for 2014/15.

Chris Chapman Technical Support Manager for the Building Safety Group commented on the HSE’s announcement to make cost recovery dispute process “fully independent”:

The idea of an independent appeals procedure can only serve to improve the reputation of the FFI, particularly as the scheme has recently fallen into disrepute. When it was first mooted, BSG engaged in the consultation process and highlighted where we thought it could go wrong, and we’ve been proved to be correct. It’s been perceived as a fine without due process.  That’s why I think the independent process should be welcomed as a means to resolve the issues which have been raised.

The HSE is rightly concerned about the judicial review as it’s basically to see if what they are doing is legal. The HSE pitched it at the time as ‘we will only charge those we have to see’. However, it was perceived to be putting the HSE on the same level as parking attendants, where they can hit you with this fee, without there being any chance of putting your case across.

The other reasoning they gave was sectors like the Nuclear industry and the Asbestos Industry – who already pay a levy to the HSE, regardless of whether they do wrong or right; so it seems this is in place when the HSE perceive we do something wrong, therefore it’s a fine. No one can hit you with a fine without due process – you get caught by a speed camera, you have the opportunity to go to court and argue your case if you wish. That was not in place in the FFI scheme. I therefore think the opportunity to have an independent appeals procedure can only be welcomed.

The HSE is encouraging companies to work in partnership with organisations like the Building Safety Group (BSG) to help improve standards in the construction sector.

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