We 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
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:
- 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
- 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.
- 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;
- Gas Safety (Management) Regulations 1996;
- sites licensed under the Nuclear Installations Act 1965;
- onshore boreholes – a separate cost recovery scheme is being brought in for this work by the Health and Safety (Fees) Regulations 2012; and
- 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
- the Control of Major Accident Hazards Regulations 1999;
- the Genetically Modified Organisms (Contained Use) Regulations 2000;
- the Biocidal Products Regulations 2001; and
- the Chemicals (Hazard Information and Packaging for Supply) Regulations 2009.
HSE will not recover its costs under FFI in the following circumstances:
- 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;
- for HSE’s work in connection with an appeal against an improvement or prohibition notice at an employment tribunal;
- 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);
- 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