We're now almost two years on from when Fees for Intervention (FFI) was introduced by the HSE. In October 2012, the HSE were provided with a statutory power to recover its costs from those in 'material breach' of health and safety law.
From very early on, the subjective and uncertain nature of the term 'material breach' opened the possibility for legal challenge. However, with the relatively modest level of the average FFI invoice, those faced with the option of either paying an FFI invoice or appealing it, often choose the former.
In the period from October 2012 to July 2014 the HSE issued 26,849 FFI invoices with an average value of £509 (or 4.1 hours of the HSE's time).
9,813 of those invoices were handed out within the construction industry at a total cost of £3.62 million, which means that an average invoice in the construction industry would set you back c£369.
Another 9,661 were handed out to the manufacturing industries at a total cost of £5.36 million. Surprisingly, manufacturing industries face average FFI invoices of around £555, a 50% increase from the average in the construction industries.
The remaining invoices were split between the agriculture, extraction utilities, service and waste management industries.
In total, between the dates of October 2012 to July 2014 the HSE invoiced almost £14 million. Whilst to most of us this might sound a lot, it still falls short of the £17 million the HSE forecasted for the 2013/2014 invoice year.
There are important legal implications to consider before agreeing and accepting a FFI invoice. While it may be financially sensible to just pay the invoice rather than dispute it, by accepting the invoice you are accepting there is a 'material breach' and this could have a knock on effect on both future criminal and civil liability.
In addition, whilst there is currently no public register of FFI invoices, it is possible that information could become public in the event a Freedom of Information Act request is made. Clearly, this has the potential to have wider reputational impact on your business.
If you've received a notice or invoice in relation to FFI and please feel free to contact us and we can talk you through your options.