HSE is to reform the way it handles the Fee For Intervention (FFI) dispute process in terms now agreed in a legally binding document.
In the consent order issued by the High Court of Justice on 23 February, HSE must agree to introduce a revised process for handling FFI disputes for health and safety breaches. It is a “significant change that will bring in a new process which will be completely independent of HSE”, said Michael Appleby, solicitor at Fisher Scoggins Waters.
Mr Appleby represented OCS Group, the facilities management firm, which successfully applied for a judicial review of the scheme. Granting the case in September last year, the judge said HSE was potentially, unlawfully “judge in its own cause”. The claim has now been dropped, but is dependent on HSE making several alterations by 1 September.
Provisions in the order cover five steps that lead up to an FFI dispute – from the moment an inspector identifies a material breach of health and safety, requiring it to pay a fee – through to its resolution.
It is proposed that the principal inspector, who reviews the FFI if a query is raised, should firstly make contact directly with the dutyholder when necessary. Mr Appleby explained: “There’s not been the option of the line manager picking up the phone to the dutyholder and getting a bit more information, they’ve just reviewed it on what the inspector tells them.”
Other changes are around what follows when it goes to dispute stage – that is after the principal inspector has passed the FFI through but the dutyholder still contests it. Under the terms of the consent order, HSE must provide evidence on which it is demonstrated FFI is payable.
Appleby said this is “a major change”: “What happens now is when you go to dispute stage, you simply write another letter, you’re not given any more detail, you don’t know what the inspector may have said in terms of support, you’re not allowed to see any of the evidence.”
Finally, the dispute will be decided by a fully independent panel; a lawyer and two health and safety management professionals, as HSE has previously announced. Currently the panel is made up of HSE staff and one independent representative.
Contacted by Safety Management for a comment, a spokesperson from HSE confirmed that it will set up a revised process, which is independent of HSE. They will consult stakeholders on the details of how the scheme should operate as set out by the court.
Ian Goodlife, director of health and safety at OCS Group said: “We are pleased to have reached agreement with HSE that resolves the matter under judicial review.”
The original notice of contravention – alleging failures in the management of hand arm vibration syndrome by OCS staff using strimmers – has been dropped under the consent order. But Mr Goodlife said that the group’s intent was never about opposing the idea of FFI itself. He said the point was to “address concerns we have about the independence, fairness and transparency of the dispute process”.
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