Paying for enforcement — fee for intervention

The HSE’s “fee for intervention” (FFI) cost recovery scheme came into effect on 1 October 2012 as a result of the Health and Safety (Fees) Regulations 2012. The regulations 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 fees are currently based on an hourly rate of £124.

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.”

In coming to a decision about what is a proportionate level of enforcement action, inspectors apply the principles of the HSE Enforcement Policy Statement and the HSE Enforcement Management Model.

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 by those who hold a licence for work with asbestos under the Control of Asbestos Regulations 2012, as the licence fee contains an element to cover the costs of inspection.

The fee is payable for the costs that the HSE reasonably incurs in relation to a material breach and includes:

• all work that is needed to identify a material breach. Where this is identified during a visit, costs for the whole visit are recoverable;

• all work to ensure that the breach is remedied; and

• any investigation or enforcement action, up to the point where HSE’s intervention in relation to the material breach has been concluded, or a prosecution is started, or a report is submitted to the Procurator Fiscal in Scotland.

Government ministers have made clear that the aim of the new 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.

The 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.”