A facilities outsourcing company has been granted a judicial review hearing in an attempt to have its fee for intervention bill overturned and the HSE’s current system for deciding FFI appeals quashed.
OCS Group UK alleges that the HSE acts as “prosecutor, judge and jury” during its procedure for challenging a notification of contravention – the formal notice that triggers an FFI bill.
On 20 September, granting OCS permission for the judicial review to proceed, Mr Justice Kerr said: “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.”
An HSE spokesperson said: “The order granting permission to OCS Group UK to proceed with a claim for judicial review is the first stage of the judicial process. The HSE is defending the claim and is awaiting a date to be fixed for the hearing of the case. As this relates to ongoing proceedings, it would be inappropriate for the HSE to comment further at this time.”
OCS’s claim relates to a notice of contravention it received in August 2014 over its use of strimmers at Heathrow airport, where the HSE alleged that it had breached Regulations 6(2) and 7(2) of the Control of Vibration at Work Regulations.
The firm was subsequently issued with two bills totalling £2306. However, OCS denied that it was in material breach of the Regulations. It raised an official “query” with the HSE that was rejected by its internal team. It then escalated the matter to a “dispute” that was also knocked back by the HSE’s disputes’ panel.
In the legal papers submitted to the court in advance of the hearing, OCS is calling for a “fair procedure and an independent means of resolving disputes” where witnesses can be called, evidence examined and representations made.
Judicial review is a legal process that allows people to challenge the lawfulness of decisions or actions by public bodies.
The Health and Safety (Fees) Regulations, which provide the statutory underpinning to the FFI scheme, places a duty on the HSE to recover the cost of regulation from dutyholders found to be in “material breach” of the law, shifting the financial burden from the taxpayer to non-compliant businesses.
A material breach is when, in the opinion of an HSE inspector, there has been a contravention of the law that requires them to issue a notice in writing of that opinion to the dutyholder.
The Regulations also require the HSE to establish an appeals process so that dutyholders can query notification of contravention. The scheme that the HSE devised has two levels for querying notices.
The HSE’s FFI guidance states that dutyholders who have a concern about a notice of contravention – such as whether there really was a material breach, the method of payment or requests for further information – can raise a “query”, which will be examined by a member of the HSE’s FFI team.