» Back to listing Costs-recovery scheme proposals get the nod from HSE Board
From April next year the 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 or e-mail recording the duty-holder’s breach is sent.
These were among the proposals agreed to by the HSE Board on 7 December based on a presentation of the outcome of the recent consultation on the fee-for-intervention scheme (FFI).
Almost 300 responses to the consultation were received and the HSE also held face-to-face dialogue with some 80 trade associations and companies. Seven key concerns were identified as being raised by the majority of consultees:
- A change in priorities by the HSE in order to maximise its receipts;
- Damage to the constructive relationship between the regulator and business;
- The definition of ‘material breach’ and reliance on individual inspectors’ opinions, or judgements;
- The ‘trigger’ for implementing FFI;
- Whether or not local-authority regulators should be included in the scheme;
- The financial impact on businesses – particularly SMEs; and
- The integrity of the disputes process.
HSE programme director for the scheme Gordon MacDonald told the Board that these concerns were common to most respondents, whether they were for or against. Some of them, he said, could be addressed fairly easily – such as by issuing guidance on what constitutes a material breach, and translating the regulator’s Enforcement Management Model (EMM) into ‘lay’ language so that people can better understand how inspectors operate within defined policies and procedures when making judgements.
As the majority of respondents were against including Local Authorities within the scope of the scheme, the Board agreed that they would be excluded.
With regard to the concern that the HSE would, over time, come to rely on FFI receipts and thus they would start to drive what the regulator does, Mr MacDonald emphasised the need for a “clear line on this” from the HSE Board. A focus on priority actions together with “a clear account of how we’ve delivered” – such as a publicly available report on the scheme’s first year of operation – would provide the transparency stakeholders require, he said.
The relationship between the regulator and the regulated will not suffer, he claimed. “You will not see a different HSE as a result of this scheme. We will only apply FFI where it is warranted, and not frivolously.” Essentially, the cut in HSE resources has required it to spend more time securing compliance from high-risk businesses and poor performers, so the regulator will naturally be spending more time with companies where there isn’t a mutually supportive relationship in the first place.
The new approach will obviously have a financial impact on those companies whose non-compliance requires 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 SMEs.
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, as MacDonald explained, the HSE is bound by Treasury rules on this, in that it must recover its full costs providing they are reasonably incurred.
As for the impact on SMEs, he pointed out that, given the HSE’s plans for proactive inspections and estimates for reactive investigations, the businesses potentially affected by FFI compared to the total population of businesses is likely to be around 1 per cent or less of all UK enterprises.
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 Hackitt 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.
