FFI and construction safety – what does it mean for you?
At the time of writing, October 2012, the new Fee for Intervention (FFI) has been in effect for a few days, for dutyholders who are regulated by the HSE. (FFI does not yet apply to HSE interventions started before October 1st, or to dutyholders regulated by other enforcing authorities such as local authorities – although it will apply to most people involved in the building trades).
The justification for FFI as set out by HSE is that it is “shifting the cost of health and safety regulation from the public purse to businesses and organisations that break health and safety laws.” They explain that “under FFI, HSE will only recover the costs of its regulatory work from dutyholders who are found to be in material breach of health and safety law. Dutyholders who are compliant with the law, or where a breach is not material, will not be charged FFI for any work that HSE does with them.”
Are you potentially at risk from being charged FFI?
Yes, if you are an employer, a self-employed person who puts others (including their employees or members of the public) at risk, or you are classified as an individual acting in a capacity other than as an employee, such as a partner.
Licensable work with asbestos by those who hold a licence for work with asbestos under the Control of Asbestos Regulations 2012 (the licence fee already contains an element to cover the costs of inspection), is exempt.
Other more general non-applicable costs are:
The HSE’s work in relation to a prosecution in England and Wales after information is laid at court – any subsequent prosecution costs will be recovered through the courts (at the courts’ discretion)
The HSE’s work in relation to a prosecution in Scotland after the HSE submits a report to the Procurator Fiscal for a decision as to whether a prosecution should be brought. Any subsequent prosecution costs cannot be recovered under Scottish law.
Enforcement Management Model
The ‘EMM principles’ are used by inspectors in making decisions about enforcement action. The underlying principle of the EMM is that enforcement action should be proportionate to the scale of health and safety risks identified and to the seriousness of the breach of law. HSE supplies guidance about the EMM, with examples about what a material breach might constitute in practice.
The initial fee payable if you are considered to be in material breach of the law is £124 per hour (except where Health and Safety Lab or third-party involvement is required, where the actual costs of the work will be recovered). This fee includes their training, travelling time, management and administrations overheads. It is likely to change in the future.
Note that they will charge for a wide range of activity including much that you do not see and cannot assess, such as –
- writing up notices and reports;
- preparing notices;
- taking statements;
- gathering evidence;
- assessing findings;
- ongoing reviews;
- and research.
Invoices will generally be sent every two months, within 30 working days of the end of each invoicing period. Invoices will be issued in January, March, May, July, September and November. FFI fees fall outside the scope of VAT. Payment is due within 30 days of the date of invoice.
How do you complain?
The disputes procedure has two levels.
At level 1, the dispute is reviewed by an HSE senior manager who is “independent of the management chain responsible for the work that generated the invoice”.
At level 2, the dispute is considered by a panel of HSE staff plus one independent representative. The procedures are described in Procedure for queries and disputes for FFI (www.hse.gov.uk/fee-for-intervention/queries-and-disputes.pdf).
The HSE will meet its costs in resolving queries about invoices.
But importantly, note that the HSE will recover from you the costs if your dispute is not upheld, based on the FFI hourly rate multiplied by the time taken to resolve the dispute. (so you now have an extra time charge).
If your dispute is upheld, the HSE invoice(s) will be amended or cancelled. If payment has already been made, the amount paid will be offset against any outstanding HSE invoice (if applicable) or refunded in part or full depending on the circumstances.
Where the HSE brings a prosecution but there is no conviction, it will repay any fee paid that wholly and exclusively relates to the offence for which there has been no conviction.
What are HSE looking for?
The issues that inspectors will cover when they visit break down into four broad areas:
Health risks – where failure to comply might lead to exposure to harmful issues such as – asbestos, asthma, confined spaces, hand-arm vibration, hazardous substances, legionnaires’ disease, musculoskeletal disorders and noise.
Safety risks – where the potential effects are immediate due to traumatic injury, (e.g. contact with moving machinery, falls from height or contact with vehicles): examples include – gas work, LPG, flammable liquids, lifting equipment, machinery guarding, pressure systems, safety maintenance, workplace transport: and construction merits its own ‘catch-all’ entry here for its high-risk nature.
Welfare breaches – requirements that are either part of the controls required for health risks, or are a basic right of people in a modern society – such as toilets, drinking and washing water supply, and clean rest facilities for eating meals etc.
Management of health and safety risks – requirements related to capability to manage health and safety risks to a sustainable acceptable level. This includes risk assessment and the access to competent in-house health and safety advice (which is rare these days) or to external health and safety consultants.
If you are confused or worried about the impact of FFI and the many other current and planned changes to health and safety legislation, call McCormack Benson Health & Safety for a free initial consultation.