The HSE has bowed to pressure and agreed to reform the appeals process for its Fees for Intervention scheme.
The move comes following growing criticism of the cost recovery initiative as well as an upcoming judicial review this summer that could have thrown the legality of the scheme and its appeals process into disarray.
The scheme, introduced in 2012, charges any company that breaks health and safety laws the costs for inspection at £129 per hour.
Among the numerous controversial aspects of the scheme, in the event of a dispute, the HSE gets to decide who is right.
Until now, disputes were considered by a panel which consisted of two members from HSE and one independent person. However, after reviewing the current process, HSE has agreed to consult with stakeholders about how to make the process independent.
A spokesperson for HSE said: “HSE has always kept the dispute process under review and following a recent application for a judicial review we believe the time is right to move to a dispute process which is completely independent of HSE.”
The scheme and its appeal process were to be questioned this summer with a judicial review being brought by facilities management firm OCS in an attempt to have its Fees for Intervention bill overturned and the current system for deciding appeals quashed.
The company alleges that the HSE acts as “prosecutor, judge and jury” during its procedure for challenging a notification of contravention – the formal notice that triggers an FFI bill.
Keith Morton QC, instructed by Mike Appleby of Fisher Scoggins Waters, is acting for OCS Group, with the firm arguing whether the retrospective process for establishing the legitimacy of an FFI notice complies with natural justice, the principle that a person cannot be a “judge in their own cause” and that a defence must always be fairly heard.
Speaking about the scheme last month as well as the upcoming judicial review, Kevin Bridges, partner at law firm Pinsent Masons, said: “A lot of people in the industry are keenly watching this court case, there’s no suggestion the scheme will be scrapped but the result could have a big impact for companies and construction.”
Data released earlier in January by Pinsent Masons found in the last year the HSE charged businesses £15m under the scheme, an increase of 23% from £12m the year before.
Even with the £15m recovered, according to HSE accounts and data complied by Pinsent Masons, the costs of administering the scheme had also been high. The scheme fell short by £2.7m in 2015/16, which represents an increase of 53% on the shortfall of £1.8m for 2014/15.