When does FFI not apply

Outsource Safety LtdSafety newsWhen does FFI not apply
January 31, 2023 Posted by Roger Hart

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. (updated January 2023, first publication 2013)

Application of FFI and exemptions

FFI is applied by HSE to dutyholders including employers, self-employed people who put others at risk, and some individuals acting in a capacity other than as an
employee (eg individual partners and, potentially in construction, domestic clients), where HSE is the enforcing authority for the HSW Act, including:

  • public and limited companies;
  • general, limited and limited liability partnerships;
  • Crown and public bodies.

FFI does not apply to work where:

  • another fee is payable or has been paid for the purpose of health and safety regulation, eg COMAH;
  • the material breach relates only to laws that are not relevant statutory provisions as defined in the HSW Act;
  • the enforcing authority is not HSE, eg local authorities.

Fees are not payable under the FFI scheme:

  • by individuals acting in their capacity as an employee;
  • by individuals who have committed an offence under sections 36 and/or 37 of the HSW Act; or,
  • by self-employed people who put only themselves at risk;
  • for HSE work in connection with an appeal to an employment tribunal against an Improvement or Prohibition Notice;
  • for prosecutions after an Information has been laid in England and Wales, or after HSE submits a report to the Procurator Fiscal for a decision in Scotland.

How FFI works

HSE’s regulatory work includes inspecting work activities, investigating incidents resulting in death, injury and ill health, following up complaints about poor standards and taking enforcement action. A fee is payable if:

  • a person is or has been contravening relevant health and safety at work law;
  • an inspector is of the opinion that the person is contravening/has contravened the law;
  • the inspector notifies the person in writing of that opinion.

The written notification must include the following information:

  • the statutory provision that the inspector’s opinion relates to;
  • particulars of the reasons for their opinion;
  • notification that a fee is payable to HSE in accordance with the Regulations.

This document is a letter known as a Notification of Contravention. This can be provided in a templated form at the conclusion of a site visit or it can be prepared and sent via post or email.

A Notification of Contravention letter will only be sent when an inspector forms the opinion that the contravention amounts to a material breach – a contravention of health and safety at work law which is sufficiently serious to require notification in writing. ‘Seriousness’ in this context is assessed by considering the principles and factors set out in the HSE’s Enforcement Policy Statement (www.hse.gov.uk/pubns/hse41.pdf) and Enforcement Management Model (www.hse.gov.uk/enforce/emm.pdf)

A Notification of Contravention letter may stand alone or be accompanied by Improvement and/or Prohibition Notices.

The Notification of Contravention letter may also include advice about matters which do not amount to a material breach and/or enforcement on contraventions of health and safety at work law for which FFI does not apply. In either case, costs for writing these elements of the letter will not be recovered from a dutyholder.

The fee will cover HSE’s costs for the time spent identifying the material breach and working with the dutyholder (eg individual, business or organisation) to put it right. Those who are complying with the law will not have to pay FFI.

When deciding whether a dutyholder is in material breach of the law, inspectors must apply this guidance, HSE’s Enforcement Policy Statement and the Enforcement Management Model. Examples of material breaches are outlined in Appendix 1.

HSE will not typically 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 etc Act 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 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 a report 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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