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18th April 2017

HSE backs down on FFI dispute

In our recent blog we announced that the HSE’s Fee for Intervention (FFI) scheme faced a Judicial Review at the High Court. Since then there have been further developments…

What is FFI?

OK, quick recap – Fee for Intervention (FFI) is the process under which the HSE charges for its Inspector’s time when it uncovers what it describes as ‘material breaches’ of legislation. The HSE invoiced £14.7 million under the FFI scheme in 2014/2015. With the hourly rate now being £129 for any companies unfortunate enough to be caught out by FFI, the average bill has now crept up to £700. Not surprising then that this scheme has proved unpopular with those businesses on the receiving end, meaning that complaints and disputes are often made.

Dispute Process

If you receive an FFI invoice and don’t agree that you have broken the law, or don’t accept the amount, then you can raise a query. In the first instance this is assessed for free by the Inspector’s line manager. If you are still not satisfied then you can escalate your query to a panel of two senior managers from the HSE and a so called ‘independent person’ but guess what…this so called ‘independent person’ still works for the HSE.

The Judicial Review

In 2016, OCS Group faced an FFI bill and decided to challenge it thorough the dispute process outlined above. They were not happy with the result and therefore sought and won the right to a Judicial Review, citing that HSE acts as prosecutor, judge and jury. When granting permission for the hearing, the judge 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.’

A Good Day in Court

In February 2017, the HSE announced that a consent order had been reached. As a result it has withdrawn its notice of contravention against OCS and will be introducing a new fully independent FFI dispute process on or before September 2017.

This means that in future, if you receive a bill under FFI that you don’t agree with, the HSE will no longer be both judge and jury.

Irrespective of the above, Lighthouse always advises those clients unlucky enough to receive a visit from an HSE inspector to keep it as short as possible. If you are non-compliant in any areas, admit it quickly and agree to fix the problem – try to rectify issues on the same day wherever possible as lengthy debates are still likely to cost you.

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