Current context - the HSE claims it has always had a “proportionate dispute process” since it introduced Fee for Intervention (FFI) in 2012, intended to lay the cost burden of HSE intervention on businesses that break health and safety laws, not on taxpayers. In September 2016, permission was granted for a judicial review of the disputes process to proceed. On granting that permission, Mr. Justice Kerr said: “It is arguable that the HSE is, unlawfully, judge in its own cause when operating the FFI scheme; and that the scheme is either unlawful or being operated in an unlawful manner”. By way of response, in September 2017, the HSE issued guidance on a “revised and fully independent process” for considering disputes in relation to FFI.
The judicial review hearing did not ultimately proceed after the HSE withdrew the disputed NoC and agreed to introduce a revised process for determining disputes that would include the HSE putting its allegations of material breaches to the dutyholder, providing disclosure to the dutyholder, permitting the dutyholder to respond/make submissions and for an independent and impartial determination of the dispute.
What has changed? In September 2017 the HSE launched a revised FFI invoice disputes process. The main change is that it will involve all disputes being considered by a panel independent of the HSE. This panel has not yet been chosen, although the HSE currently have a backlog of disputes.
Where the dispute is not upheld, the HSE will issue an additional invoice to cover the costs reasonably incurred by the panel considering the dispute. The HSE have not yet published what these costs will be.
We recommend you seek legal advice before entering into correspondence with the HSE in relation to Notices of Contravention or FFI invoices. If invoices have already been paid, there may even be certain circumstances where you are entitled to a refund, such as following acquittal at trial.
Although guidance on the revised process has been published on the HSE website, dutyholders should be aware that the HSE are in the process of making amendments to this. They anticipate that it will change so that dutyholders will be informed of the date of the panel at least 21 days in advance and only then will the HSE disclose all the relevant documents. It remains to be seen how the three week period given to dutyholders to consider all the material and submit responses to will compare to the length of time the HSE provides itself to do the same.
The guidance states that the panel’s decision will normally be based solely on the written information provided to them. In exceptional circumstances the panel will have the discretion to convene a meeting with the dutyholder and HSE, but this will only be in agreement with both parties and to expedite a decision. This is not a ‘hearing’ and there appears to be no provision for witnesses to be called or questioned.
The HSE guidance currently states that additional information, which was not available or known to the inspector at the time a NoC was issued, will not be provided to the panel. This approach echoes that taken by the HSE in the context of a prohibition notice appeal and was an approach ultimately rejected by the Supreme Court in Inspector of Health and Safety v Chevron North Sea Ltd.  UKSC 7. It remains to be seen what the practical effects of this decision will be for the purposes of FFI.