The six-week consultation launched on 21 April asks six questions about how the new disputes process will operate; how HSE can enable businesses to understand how they are in material breach of the law and why fees have been incurred.
Under the first and second questions covering how breaches and the dispute is communicated between dutyholder and regulator, it says that ‘in the usual course of events, disputes will be decided on paper’.
But Claire Wallace, solicitor and Andrew Katzen, partner at Hickman & Rose, in their assessment, told Safety Management that the provision appears one sided: “Participants seeking to dispute their FFI notices are not even afforded the opportunity to choose whether to have a hearing in person or on the papers – to attend in person is a discretion granted by the panel alone.”
As anticipated, HSE proposes that the panel is made fully independent, removing two HSE senior managers and appointing instead a lawyer and two health and safety professionals. But Hickman & Rose point out that: “Introducing an independent panel to replace a partly independent panel is a relatively superficial fix if its members are still appointed and paid by the HSE.”
“The consultation has failed to balance the hopelessly one sided costs regime whereby companies or individuals take on a significant costs risk by challenging a FFI decision,” they add.
“If they win they avoid their FFI bill, but at the expense of what could amount to considerable legal fees. If they lose they pay the FFI, their legal costs, the HSE’s legal costs and now, the costs of the panel,” they also observed.
“It has always been a criticism of the FFI scheme that it may discourage that cooperation. Under the proposed scheme there remains a real risk that people will not have confidence in the system if these issues are not resolved in a more satisfactory manner,” they concluded.
HSE’s consultation of the disputes process comes after facilities company, OCS brought a judicial review. It was dropped, but only on the condition that HSE would follow the High Court’s order to consult on radically changing the FFI disputes process.
The consultation states that: "We are consulting on a revised and fully independent process for considering disputes in relation to FFI. We are consulting on the details of how the process should operate. In particular, we recognise the need to ensure that the process is accessible to all types and sizes of business and is proportionate to the issues involved and amount of the fees.
“The responses to this consultation exercise will be considered by HSE before the proposal is finalised.” It ends 2 June.
Consultation on a revised process for considering disputes under Fee for Intervention (FFI) here