The HSE last week announced that it will consult on plans to make the process for disputing Fee for Intervention (FFI) notices “fully independent”.
The move means that the regulator has voluntarily taken up a position that it might have been forced into if a scheduled judicial review hearing – now almost certainly cancelled – had gone ahead.
The HSE issued a statement on 9 February outlining its plans to hold a consultation on the make-up of the panel that adjudicates on disputed FFI invoices, the issue at the centre of the planned judicial review brought by facilities management company OCS Group.
TEAM Safety Services understands that the statement followed a meeting between OCS Group and the HSE where the two sides came to an agreement to halt the legal proceedings.
A “consent order” setting out the terms the two parties have reached was submitted to the court on 7 February. If it is accepted, the hearing will be cancelled.
Currently, any dutyholder seeking to challenge a notice of contravention – the trigger for an FFI invoice – will have its case heard by a panel of three, made up of two HSE staff and an independent person drawn from industry or a trade union.
“The current system creates a costs incentive for inspectors to find material breaches and an independent dispute resolution system is therefore vital to ensure the whole HSE inspection process maintains its credibility.”
The HSE had looked set to defend the disputes procedure, but in the press statement last week the regulator said that it now plans to “review the current process … and consult with relevant stakeholders with a view to making the process fully independent”.
A spokesperson added: “The HSE has always kept the dispute process under review and following a recent application for a judicial review we believe the time is right to move to a dispute process which is completely independent of the HSE.”
The regulator has not announced its proposals for the new disputes process, what form the consultation will take or when it will be launched.
The FFI scheme was introduced in October 2012 with the aim of shifting the cost of regulation from the public purse to businesses that break the law. It required inspectors to issue businesses found to be in “material breach” of the law with a notice of contravention
Dutyholders wanting to query a notice of contravention can raise a “query”, which will be examined by a member of the HSE’s FFI team. If they are not satisfied with the response, they can raise a “dispute”. A panel of HSE staff and an independent representative will consider whether the invoice should be upheld, varied or cancelled.
However, there is no right for dutyholders, their representatives or HSE inspectors to appear before the panel.
TEAM Safety Services will keep you up to date with any changes to the FFI scheme.