03 February 2017
The Health and Safety Executive has been recovering its’ costs for carrying out its regulatory functions from duty holders since 2012. The Fee For Intervention Scheme has its’ critics, but in the past few years, we have seen individuals and companies who are in material breach of health and safety law broadly accepting what is akin to a punitive tax on non-compliant businesses.
There has been piecemeal challenge to individual FFI invoices, with varying degrees of success however the FFI appeals process is currently subject to Judicial Review in the High Court in England. OCS Group Limited have petitioned the High Court challenging the fairness and impartiality of the appeals process, with one of their arguments being that the Disputes Panel is not independent as two out of three of those ruling on the dispute are HSE staff (the third being an independent lay representative).
If OCS is successful, particularly on the ground the FFI appeal process is found to be manifestly unfair, this could have significant repercussions for (i) duty holders who have pending FFI invoices which they have not yet paid and/or (ii) those with pending appeals. One option would be an amendment to the appeals process to cure any procedural unfairness.
The Judicial Review Hearing is listed for 8 March 2017, with the Judgment expected in the springtime. If you or your organisation become subject to the FFI regime in the interim, Bto’s top tier Regulatory team can provide the necessary advice and assistance in that regard as it is clear that FFI may be subject to litigation for many months to come.
If you require further information about this update, please do not hesitate to contact: