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From April this year, the Health and safety Executive (HSE) will charge duty holders who materially breach health and safety law an hourly rate of £124 for its intervention, which will be counted from when a letter of e-mail recording the duty holders breach is sent.
These were among the proposals agreed to by the HSE Board in December, based on a presentation of the outcome of the recent consultation on the fee0-for-intervention scheme (FFI) – part of the Government’s ‘Good Health and Safety – good for everyone scheme’ framework unveiled in March 2011.
Almost 300 responses to the consultation were received and the HSE also held face-to-face dialogue with some 8- trade associations and companies. Seven key concerns were identified as being raised by the majority of consultees:
- A change in the priorities by the HSE in order to maximize its receipts;
- Damage to the constructive relationship between the regulator and business;
- The definition of ‘material breach’ and reliance on individual inspectors’ opinions, or judgments;
- The ‘trigger’ for implementing FFI;
- Whether or not local authority regulators should be included in the scheme;
- The financial impact on business – particularly SME’s, and;
- The integrity of the disputes process.
Some of the concerns could be addressed fairly easily – such as by issuing guidance on what constitutes a material breach, and translating the regulators Enforcement Management Model (EMM) into ‘lay language so that people can better understand how inspectors operate within defined policies and procedures when making judgments. As the majority of respondents were against including Local Authorities within the scope of the scheme, the Board agreed that they would be excluded.
The new approach will obviously have a financial impact on those companies whose non-compliance required the intervention of the HSE, and many consultees were concerned that the hourly rate – which has now been decreased to £124 per hour from the initial estimate of £133 – could be difficult for businesses in the current economic climate, particularly SME’s.
Some suggested that ability to pay should be factored in, or that the fee should be a flat one, or based on company size, but the HSE is bound by Treasury rules on this, in that it must recover its full costs providing they are reasonably incurred. Finally, in the case of fees being disputed, there will be independent, external input to the final stage of the process to avoid the HSE being seen as ‘judge and jury’.
HSE Chair, Judith Hackett expressed the wish of the Board to proceed with the scheme on the basis outlined in the proposals document. Consequently, the HSE will recommend to the minister for employment the draft Health and Safety (Fees) Regulations 2012, to come into force next April.
