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    TIPS ON MINIMISING RISK FROM NEW HSE CHARGING REGIME

    Fee for intervention (FFI) scheme only days away from commencement

    The HSE fee for intervention (FFI) cost recovery scheme comes into effect on 1 October 2012. HSE will recover costs of carrying out its regulatory functions from those “found to be in material breach of health and safety law”.

    A ‘material breach’ is one where the HSE inspector is of the opinion that there has been a contravention of health and safety law serious enough to require them to notify the person (company) in material breach of that opinion in writing.

    The government believe that FFI will:

    • encourage businesses and organisations to comply in the first place;
    • put matters right quickly; and
    • discourage those who undercut competitors by not complying with the law and putting people at risk.

    The Fee for Intervention hourly rate for 2012/13 is £124 and detailed guidance for dutyholders has been published by HSE.

    A new section has been added to the HSE website to illustrate the most basic safety mistakes found in the workplace. These examples provide an indication of matters which might constitute a ‘material breach’.

    FFI will be reviewed after the first twelve months of operation and within three years of the regime coming into effect with review reports published on the HSE website.

    Tips for minimising risk from FFI

    It is important that dutyholders consider how they might respond to the new charging regime. Even the most diligent of construction projects could be found in material breach and liable to be charged.

    Our tips for minimising the risk and scale of FFI charges are:

    1. Prevention – review the significant hazards on each project and the measures required to control the risk. HSE inspectors will target uncontrolled significant risk at the place of work so do not provide the opportunity for a ‘quick win';
    2. Awareness – make sure that everyone on the project team is aware of the change and the key hazards and controls relevant to their operations. The examples given in the guidance provide a starting point and checklist;
    3. Sharing – construction projects involve clients, designers, coordinators, contractors and suppliers and allocation of responsibility for a material breach may be complex. Make sure all dutyholders on the project are aware of this shared liability and encourage greater cooperation and coordination;
    4. Discussion – open a positive dialogue with the inspector when a potential material breach is identified and look to avoid the conclusion that you are in material breach;
    5. Action – supplement dialogue with swift remedial action which in combination may help the inspector conclude that a material breach has not taken place;
    6. Confession – where an inspector is of the opinion a material breach has occurred you might offer to provide a full report to HSE indicating the matters discussed and action taken thereby making it unnecessary for the inspector to notify the breach in writing;
    7. Minimisation – where a material breach is identified and the inspector has indicated charges will be imposed look to agree and implement preventive action as soon as possible to minimise the FFI costs that might be claimed;
    8. Incidents – greatest costs will probably be generated by HSE investigations which could result in high five figure invoices for errant businesses. Where incidents occur a thorough internal investigation shared with HSE should reduce the time taken by HSE to conclude the investigation and action and hence minimise the overall bill; and
    9. Budget – and finally, assume you will err at some stage and allow for the possibility of FFI costs within your project budgets!

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