Health and Safety (Fees) Regulations 2012
The Health and Safety (Fees) Regulations 2012 came into effect on 1st October 2012, marking a significant change to the way that the Health and Safety Executive (HSE) finance their investigations. Prior to the implementation of these Regulations, all HSE investigations were publicly funded. However, the Regulations as they stand now enable the HSE to recover the costs of its investigations and regulatory duties from companies it finds to be in material breach of the law.
Material breach
What constitutes a material breach? The HSE states:
“A material breach is when, in the opinion of the HSE inspector, there has been a contravention of health and safety law that is serious enough to require them to notify the person in material breach of that opinion in writing”.
A few examples of material breaches include:
- Not providing guards or effective safety devices to prevent access to dangerous machinery
- Materials containing asbestos in a poor or damaged condition resulting in the potential release of asbestos fibres
- Not adequately planning and/or supervising work at height
- Poorly maintained or misuse of ladders
- Unhygienic or non-existent welfare facilities
The cost of investigation
- The HSE will charge businesses £124 for every hour an inspector takes to investigate and resolve a material breach.
- The fee is payable for the costs that the HSE reasonably incurs during regulatory work in relation to a material breach.
- The total amount a business can be charged will vary depending on the complexity of the issues, and the number of material breaches involved in the case.
- If more than one dutyholder is involved, the inspector will reasonably apportion the time spent investigating (and fees) between each dutyholder.
How much has breach of health and safety law affected UK businesses under FFI so far?
Health and Safety at Work magazine reported in January that the first FFI invoices had been issued that month by the HSE, to organisations found to be in material breach of the law.
HSW reported that the total sum invoiced for the two months from 1 October to 30 November 2012 was £727,644.81,which came from 1419 FFI invoices.
With inspectors potentially still dealing with cases that started before FFI came into force, the number of invoices are expected to increase over the coming months when all or the majority of their cases will fall under the FFI scheme.
The HSE initially projected that the first full year of operation (2013/14) will raise £37 million in FFI invoices, however, now the scheme is in effect an HSE spokesperson has warned that it is too early to draw conclusions on what the typical level of receipts from FFI will be. It was confirmed, however, that between a quarter and a third of inspections carried out by HSE in the first few months found a material breach resulting in a fee for intervention.
The rationale behind the changes
The Regulations now put accountability for complying with health and safety laws in the hands of businesses; if a business breaks the law, it is its own responsibility to pay for any time HSE inspectors spend putting the matter right.
HSE and the government are optimistic that FFI will encourage businesses to comply with health and safety law in the first place, or put the matter right quickly if they are not, in order to limit the fines they could be charged.
It is also hoped that these fees will discourage businesses from intentionally disregarding health and safety laws in order to keep their prices down and undercut competitors, thereby putting people at risk.
Who does FFI apply to?
What’s not included?
Fee for intervention only applies to investigations carried out by HSE inspectors. These fees are not enforceable by other bodies such as local authorities, the police or the Environment Agency.
There are also a few businesses to which FFI will not apply:
- Self-employed people who don’t put other people at risk by their work
- Businesses that are already paying fees to HSE for the work through other arrangements
- Businesses that deliberately work with certain biological agents
All businesses that comply with health and safety law will continue to pay nothing.
HSE decision making process
To ensure uniformity and fairness in their decision making processes, HSE inspectors make their decisions in line with the HSEs Enforcement Policy Statement (EPS) and utilise the Enforcement Management Model (EMM) to do so. The EMM is a logical system which provides inspectors with a framework from which they can make enforcement decisions that are proportionate to the seriousness of the breach they’re investigating.
How can businesses prepare themselves to ‘comply in the first place’?
To ensure the health and safety of staff and the general public it is imperative that businesses comply with the health and safety laws, which apply to all businesses, regardless of size. Businesses must:
- Have suitable systems in place to protect employees, visitors and the general public
- Provide a comfortable, safe and suitable working environment for staff to perform their duties with the correct facilities they need to do their job
- Ensure all policies are appropriate for your business and are kept up to date and compliant with legislation
- Have appropriate risk assessments and method statements in place which are up-dated as necessary
- If you have 5 or more employees ensure you have an up-to-date health and safety policy, this is also useful for businesses with less than 5 employees
- Provide relevant training and information regarding any risks and hazards in your work place
- Have appropriate first aid facilities available
- Keep a record of any injuries, incidents and cases or work related disease
- Display a health and safety law poster
- Have adequate and appropriate insurance
How can ProAktive help you?
SMEs
For small organisations we can act as your competent person and offer a service that takes care of every aspect of your health and safety requirements, from coming to your premises for initial assessments and examining your current procedures all the way through to preparing bespoke health and safety documentation for you, including updates when they are required due to organisational or legislative changes. In addition you can have 24 hour access to your policies and documentation online.
Larger organisations
Larger organisations often have dedicated in-house support for health and safety, but can still benefit from external resources. We can offer enhancements to your existing health and safety solutions, helping ensure you have appropriate up-to-date documentation, even across multiple sites. We offer bespoke training packages, accident/incident investigation, consultancy support and 24 hour access to help and support.
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