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14th February 2017

HSE’s Fee for Intervention scheme to be challenged

The HSE’s much loathed Fee for Intervention (FFI) scheme is facing a judicial review, in early 2017.

We will keep you posted on the result. However, don’t expect the scheme to disappear overnight. Even if the review goes against the HSE, it’s expected that it will lodge an appeal.

What’s happening?

Towards the end of last year a legal challenge was launched against the HSE’s fee for intervention scheme by OCS Group UK. 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.

The firm’s argument questions whether the retrospective process for establishing the legitimacy of an FFI notice complies with natural justice, the principle that a person cannot be a “judge in their own cause” and that a defense must always be fairly heard.

The current mechanism for appealing an invoice is to submit a query to the HSE within 21 days. If the response if unsatisfactory then a formal dispute may be raised in writing. A HSE panel with one independent representative will then hear the dispute – a process which is considered to have been unfair for some time.

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.”

OCS’s claim

OCS’s claim relates to a notice of contravention it received in August 2014 over its use of strimmers at Heathrow airport. The HSE alleged that it had breached Regulations 6(2) and 7(2) of the Control of Vibration at Work Regulations.

When is this Happening?

The date for the judicial review hasn’t been fixed as yet. However, it should be in the early part of this year and we will keep you posted of the outcome. If the case is kicked out, it will be business as usual for the HSE. And if it loses we suspect it will results in an appeal. This may well prompt a change to the regime, creating a more transparent and accountable system for disputing invoices.

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