The Health and Safety Executive (HSE) has published new hourly cost recovery rates for its enforcement activities, effective from 1 April 2025. Notable rates include £183 per hour for fee for intervention (FFI) activities.
What is the HSE’s FFI scheme?
The HSE introduced the FFI scheme in October 2012, primarily with the purpose of shifting some of the costs of health and safety regulation from the public purse to those businesses and organisations that break health and safety laws. In 2012, the rate applicable under FFI was £124 per hour. The hourly rate has steadily increased over the years to the current rate of £183. Under the scheme, duty holders (such as public and limited companies, self-employed, partnerships and public bodies) that the HSE considers are in “material breach” of any health and safety law are liable for the HSE’s related costs of carrying out its investigation.
When does FFI apply?
The FFI scheme allows the HSE to recover its investigation costs whenever a “material breach” is identified, such as a failure to assess and manage key areas of risk and using workers to complete tasks for which they are neither competent nor properly trained.
The scheme allows recovery of costs irrespective of whether any prosecution is subsequently brought or any other formal enforcement action taken as a result. A wide range of standard HSE investigatory activities are covered by the scheme including the time an inspector spends undertaking site visits (including the time of the entire original visit), obtaining witness statements, reviewing documentation, preparing reports and engaging experts (including specialist inspectors). In addition, the time required to provide compliance advice to a duty holder and to check that the remedial measures are suitable, are also covered.
A breach will be considered “material” when, in the opinion of the HSE inspector, there has been a contravention of health and safety law that is serious enough to require them to issue a notice in writing of that opinion to the duty holder and requiring action to be taken. In most cases, the notice is served as a “Notification of Contravention” (NoC). The NoC must include the law that the inspector considers has been broken, the reason(s) for their opinion and notification that a fee is payable to the HSE.
Invoices are subsequently issued every two months until the HSE has concluded its investigation. The total amount recovered will be based on the amount of time it takes the HSE to identify the breach and help duty holders to achieve compliance.
Challenging costs claimed under FFI
The HSE is only entitled to claim costs by way of FFI once a material breach has been identified. Therefore, any costs that are claimed prior to a material breach being identified can be challenged.
A duty holder can challenge costs claimed by the HSE under the FFI scheme including disputing the HSE’s finding of a material breach and/or the time spent and consequent amount claimed.
Initially, a duty holder has 21 days from the receipt of the FFI invoice to raise a query which will be determined by the HSE inspector’s principal inspector (line manager).
If the query is not upheld, the duty holder can subsequently raise a dispute. The dispute must be raised within 21 days of receipt of the determination of the query. The dispute will be decided by a panel comprising of an independent lawyer and two independent members with experience of managing health and safety.
The HSE will suspend the dispute process when it is related to an ongoing investigation or appeal against an enforcement notice.
Conclusion
Businesses are well advised to review their current approaches to health and safety management to ensure an inspector’s visit is not concluded with potentially significant cost recovery under FFI. With the HSE targeting more proactive and unannounced inspections combined with the new higher hourly rate, it appears that the level of FFI activity will only continue to increase over the coming years.
It is important to obtain specialist legal advice when responding to Notifications of Contravention/s served by the HSE and dealing with queries and disputes. Responses to such notifications can potentially be used as evidence by the HSE as accepting an inspector’s opinion regarding material breaches of health and safety law if prosecutions follow. It is important to note that if a dispute is not upheld, not only is the invoice itself payable but the duty holder will also be liable to pay the additional costs of the panel for preparing for and considering the dispute.
For more information on the FFI scheme, dealing with the above notifications, invoices, queries and disputes and health and safety investigations generally, contact our health and safety solicitors.
