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HSE FEE FOR INTERVENTION FACES LEGAL CHALLENGE

hselogo1Permission for judicial review of FFI appeals scheme granted

It has been reported that Keith Morton QC, instructed by Mike Appleby of Fisher Scoggins Waters, will be acting for a facilities outsourcing company who are seeking to quash the HSE system for deciding Fee for Intervention appeals and to challenge the rejection of its appeals against specific Notices of Contravention.

The judicial review hearing is yet to be fixed but is expected to take place in the early part of 2017.  The permission was granted by Mr Justice Kerr who, when granting permission, observed that:

“It is arguable that the HSE is, unlawfully, judge in its own cause when operating the FFI scheme; and that the scheme is either unlawful or being operated in an unlawful manner.”

JR is about the way decisions made

Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. The reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.

One commentator on the HSE Construction Web Online Community recently expressed concern about the FFI process in stating:

“Fees for intervention are a blight on a lawful democratic society. They should be banned forever, and paid back by the government. No one should be guilty until tried by a fair judicial process. Innocent until proved guilty is what our legal system is about. Yet the size of FFI effectively makes them a fine.”

JR is not concerned with the conclusions of the process and whether those were ‘right’, as long as the right procedures have been followed. The court will not substitute what it thinks is the ‘correct’ decision.

Relationships changed and strained

The HSE Fee for Intervention scheme has also come under fire because of the effect on the relationships between the regulator and the regulated. One legal practice surveyed clients and found:

“The overwhelming feeling from our national client survey is that the dynamic around HSE visits has changed dramatically, with organisations complaining of a ‘double whammy’ in that HSE inspectors are quick to identify a material breach, yet the advice they have provided to organisations in the past is frequently less available.”

Our recent analysis of information requested from the HSE Fee for Intervention (FFI) team has revealed that the total value of FFI invoices issued in the construction sector has increased by over a quarter (26%) during the last 12 months of recorded data.

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