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HSE OPEN FEE FOR INTERVENTION CONSULTATION

hselogo1Regulator proposal for revised FFI disputes process

Following initiation of Judicial Review HSE has now decided to “move to a fully independent process for considering disputes in relation to the Fee For Intervention (FFI)” and the regulator is now consulting on the details of how the process should operate.

HSE recognise the need to ensure that the process is accessible to all types and sizes of business and is proportionate to the issues involved and amount of the fees. It is also recognised that businesses need to be able to understand why HSE considers that they are in material breach of the law and why the fees have been reasonably incurred.

Consideration of disputes

HSE proposes that future disputes will be considered by a panel independent of HSE consisting of a lawyer as chair together with two other members with practical experience of health and safety management. The details and justification for the revised process are as follows:

  1. Panel will be provided with the written information and/or a summary provided by HSE and the written representations and information provided by the duty holder;
  2. Disputes will usually be decided on paper. However, the panel will have the discretion to convene a meeting with the duty holder and HSE to address the issues where it is considered necessary and desirable to do so. This is not a “hearing” and there will be no opportunity for witnesses to be called or questioned;
  3. Panel will make recommendations in relation to the determination of the dispute, giving written reasons for its decision, which ordinarily HSE will accept unless it considers the recommendation to be clearly wrong;
  4. Fees which remain disputed can only be recovered by HSE taking civil action to recover the debt. It is obviously open to the dutyholder to defend those proceedings if they still consider that the fees were not payable or the costs were not reasonably incurred;
  5. Introducing a lawyer as chair of the panel could be seen by some as making the process too legalistic and quasi-judicial. HSE do not want to make the process inaccessible to small businesses. However, many disputes centre on whether there has been a material breach of the law and therefore the skills of a lawyer will be valuable in considering this. Panel will need to give its reasons and a lawyer is well placed to ensure this is done appropriately. The other panel members will provide important practical experience of health and safety management.
  6. In the event that a dispute is not upheld the duty holder will have to pay the costs reasonably incurred by HSE in handling the dispute. This will include a fee for the lawyer and travelling expenses for the other panel members. HSE do not anticipate that the costs incurred by HSE in dealing with disputes under the revised system will be materially different from the current system.
  7. Where the fees being disputed under FFI are small, it is possible that the costs of the dispute could be more than the original fees. HSE seek views on whether there should be a different process where the amount of the fees are small and/or there is no dispute about whether there is a material breach and, if so what that process might be.

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