Paying for enforcement — fee for intervention



The Health and Safety (Fees) Regulations 2012 require the HSE to recover its costs for carrying out its regulatory functions from employers and other duty holders found to be “in material breach” of health and safety law. The HSE’s “fee for intervention” (FFI) cost recovery scheme has been in effect since 1 October 2012, and the fees are currently based on an hourly rate of £129.


The HSE explains that: “A material breach is where you have broken the law and the inspector judges this is serious enough for them to notify you in writing. This will either be a notification of contravention, an improvement or prohibition notice, or a prosecution.”



Examples of material breaches include not providing guards or other safety devices to prevent access to dangerous parts of machinery, and material containing asbestos being left in a poor or damaged condition, resulting in the potential for asbestos fibres to be released.



FFI only applies where the HSE is the enforcing authority. Other health and safety regulators, including local authorities, cannot recover their costs under the scheme and it does not apply where businesses already pay fees to the HSE through other arrangements. For example, it does not apply to licensable work with asbestos carried out by license-holders under the Control of Asbestos Regulations 2012, as the licence fee contains an element to cover the costs of inspection. See Chapter 6 for information on Asbestos.



Government ministers made clear that the aim of the scheme is to shift the cost of health and safety regulation from the public purse to businesses and organisations that break health and safety laws. The HSE says that it will also encourage businesses and organisations to comply with health and safety law in the first place, or to put matters right quickly when they do not, and that it will discourage those who undercut their competitors by not complying with the law and putting people at risk.



A 2014 HSE Triennial Review report was critical of the FFI cost recovery scheme and recommended that “unless the link between ‘fines’ and funding can be removed, or the benefits can be shown to outweigh the detrimental effects, and it is not possible to minimise those effects, FFI should be phased out.” However, a second independent review of FFI published in September 2014 concluded that the cost recovery scheme had proven effective and should stay. It found that HSE inspectors had implemented the scheme “consistently and fairly” and found no evidence to suggest that its introduction had influenced enforcement policy decisions. The second review included representatives of the GMB general union, the Federation of Small Businesses and the Department for Work and Pensions.



In 2015-16, the HSE’s income from FFI increased by £4.6 million to £14.7 million compared with £10.1 million the previous year. Its total income in the current financial year (2017-18), including reduced government funding of around £136 million, is £232 million.


In April 2017, the HSE launched a consultation on a revised and independent process for considering disputes under its FFI cost recovery programme. This follows a legal challenge to the way the HSE handles disputes over FFI charges. The claim was brought by facilities management company OCS Group, which was granted a judicial review hearing. The HSE settled the judicial review out of court before a High Court hearing that was due to take place in March 2017.