When does FFI not apply

HSEWe thought it might be useful for our clients to know of instances where HSE Fee For Intervention does not apply.  Careful reading will see some contradiction with the recent instance of an individual being served an FFI notice.

Exemptions and disapplications to FFI

FFI does not apply to either self-employed people who only put themselves at
risk, or employees. In addition, FFI does not apply to individuals who have
committed an offence under sections 36 and 37 of the Health and Safety at Work
etc Act 1974 because these provisions do not create a duty which can be
breached.

Instead they specify the circumstances in which a director, manager,
secretary or other similar officer can be guilty of an offence. Where an employee is
in material breach and their employer is also in material breach, FFI only applies to
the material breach by the employer.

The following work activities are currently exempt from FFI:

  1. licensable work with asbestos by those who hold a licence for work with asbestos under the Control of Asbestos Regulations 2012 (the licence fee contains an element to cover the costs of inspection); and
  2. work activities involving biological agents at containment levels 1 to 4, as it is intended that a full cost recovery scheme will be introduced for this work within two years.

HSE will not charge FFI for work where another fee is already payable for
some or all of that work.

This includes:

  1. sites subject to the top-tier requirements of the Control of Major Accident Hazards Regulations 1999 (COMAH) and HSE’s work at lower-tier COMAH sites connected with the control of major accident hazards;offshore oil and gas production facilities;
  2. Gas Safety (Management) Regulations 1996;
  3. sites licensed under the Nuclear Installations Act 1965;
  4. onshore boreholes – a separate cost recovery scheme is being brought in for this work by the Health and Safety (Fees) Regulations 2012; and
  5. other work activities such as first-aid approvals services where HSE already recovers a fee.

HSE will not charge FFI for carrying out its functions under the following
statutory instruments:

  1. the Control of Major Accident Hazards Regulations 1999;
  2. the Genetically Modified Organisms (Contained Use) Regulations 2000;
  3. the Biocidal Products Regulations 2001; and
  4. the Chemicals (Hazard Information and Packaging for Supply) Regulations 2009.

HSE will not recover its costs under FFI in the following circumstances:

  1. where the material breach relates only to any of the laws listed in Appendix 1 because these laws are not made under the Health and Safety at Work etcAct 1974;
  2. for HSE’s work in connection with an appeal against an improvement or prohibition notice at an employment tribunal;
  3. for HSE’s work in relation to a prosecution in England and Wales after an Information is laid at court – any subsequent prosecution costs will be recovered through the courts (at the courts’ discretion);
  4. for HSE’s work in relation to a prosecution in Scotland after HSE submits areport to the Procurator Fiscal for a decision as to whether a prosecution should be brought. Any subsequent prosecution costs cannot be recovered under Scottish law; and for HSE’s work in relation to Crown bodies from the point where HSE formally notifies the Crown body that it would have begun FFI

If you’ve got questions or need support on safety in the industrial, contracting or construction sectors please contact us for sensible and proportionate advice on 01453 800100

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Please complete the form below and we promise to respond within 24 hrs. If you need more urgent help just call 01453 800109 and ask for Andrea.

 

The end of Site Waste Management Plans (SWaMP)… or not

In something of a strange turn of events the construction industry is standing (mainly) in defiance of the coalitions cutting of red tape.

Technically, the Construction Site Waste Management Plan Regulations (2008), have no longer been in force since October 1st 2013.  But the majority of major construction companies, 55 of them in total, have said that they will continue to use the plans in spite of this repeal.

It makes interesting reading to see that of the 169 respondents to the consultation the split was equal between those supporting and opposed to the repeal with 82 in each camp.  There seems to be a split between those who feel that the repeal was a positive move for contractors and those who felt this was a backwards step and did not represent best practice for the industry.

ONe complication is that the plans are still required for projects aiming for certain BREEAM (BRE Environmental Assessment Method) and the Code for Sustainable Homes ratings. The UK Contractors Group (UKCG) also indicated they would still use the plans on their sites representing the majority of major sites in the UK.

The government countered that its calculations estimated a saving of £3.9m per year from the move but it should be noted that this calculation made no mention of any money saved through application of the waste management plans – something which could be a sum many times this amount.

So all in all a confused message which seems both at odds with the governments committment to green issues and its attempts to reduce the overall burden on business when you account for such a small return across the whole of the UK construction industry.

So is this move something of a white elephant?  Yes, we think so.

If you’ve got questions or need support on safety in the industrial, contracting or construction sectors please contact us for sensible and proportionate advice on 01453 800100

Contact form

Please complete the form below and we promise to respond within 24 hrs. If you need more urgent help just call 01453 800109 and ask for Andrea.