Comply or pay - HSE Fee for Intervention explained
05 September 2013
Since October 2012 there has been another very good reason for complying with health and safety legislation: Fee For Intervention (FFI). The FLTA’s Owen Delaney explains.
In short, it means that a company that undergoes an inspection by the HSE – where a breach of law has been identified – will now pay for this privilege.
FFI was introduced to help the HSE recover the cost of time spent dealing with ‘material breaches’, a term which can be misleading as it sounds like something much more serious than it is.
The HSE defines a material breach as: "when, in the opinion of the HSE inspector, there is or has been a contravention of health and safety law that requires them to issue notice in writing of that opinion to the duty holder.”
This means that, if an HSE inspection reveals a ‘material breach’, the business concerned will have to pay for every hour that the HSE takes to help put matters right, to investigate and to take enforcement action. Until the advent of FFI, this work had, as a rule, been paid for by taxpayers.
Now, from the moment that a breach is discovered, the business will be liable to a charge of £124 per hour for the HSE’s work. There is also the possibility that the HSE will engage a third-party expert to assist with the case, for which the hourly charge to the business could be higher.
It has been confirmed by the HSE that the average charge to date has been around £500. Importantly, 40% of the reported FFI notifications have been in the construction sector. Unlike the materials handling sector, many of these will be small sites with straightforward remedies.
Due to the complexity of workplace transport, it is not unreasonable to expect that average charges for businesses in this sector to rise to around £2,500. On top of this will be hidden disruption and remedy costs for any business dealing with and resolving the breach and this sum can be more than 10 times the cost of any fine.
It should be stressed immediately that you will have nothing to pay unless you break the law, whether knowingly or unknowingly. However, HSE inspections can be very thorough, often going far beyond the initial fork lift or other WPT issue to look at other aspects of your operations, and there is always the possibility that the inspector might find something of which you were not even aware.
To protect yourself from such an eventuality, it’s vital that you should take advice, be aware of current legal requirements and follow best practice. The Fork Lift Truck Association website – www.fork-truck.org.uk – is a wealth of useful information for this. Fork lift users are also strongly recommended to join the FLTA Safe User Group for further assistance including regular updates on changes to health and safety legislation.
When an inspector calls
The HSE makes many inspection visits to business premises, often in response to incidents or complaints. If the inspector finds that you are complying with the law, or that any breach of the law is not ‘material’, FFI will not apply.
If, on the other hand, your breach of the law is considered serious enough to warrant a notification in writing, it will constitute a ‘material breach’ and you will be invoiced for FFI.
Examples of material breaches relating to fork lift trucks include:
• Using unsuitable lifting equipment for a task, leading to overturning.
• Failing to meet the statutory obligation for Thorough Examination, or continuing to use a truck after a serious defect has been identified.
• Lack of an inspection or maintenance system to ensure that the equipment remains safe.
• Poor planning, supervision and execution of lifting operations with regard to safety.
• Use of forks, or a pallet placed on the forks, to allow someone to work at height.
There are, of course, many more ways in which truck users can seriously contravene the law.
Since its introduction, there has been some controversy surrounding FFI, with a number of businesses claiming that HSE inspections have become more ‘aggressive’ or ‘pedantic’.
The HSE denies this and points to data showing that only around 25-30% of inspections have triggered FFIs.
With the construction sector accounting for more than a third of all FFI notifications, users should beware when operating fork lifts on building sites.
However, construction is seen by some as ‘easy pickings’ when compared to fork lift trucks and the workplace transport sector. With one of the highest levels of serious injury and second highest level of fatalities, businesses should be prepared for the HSE to turn its attention this way.