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Fees for Intervention

Rob Slater 5 years ago   Reply

Colleagues, I need your help.

I have been trying to find out what will count as 'material breaches' of HS law as soon to be interpreted by the HSE inpsectors. There is nothing on the HSE website newer than Dec 11, all I can find refers to the proposals. I just called the HSE switchboard and was put through to a very obliging lady who tried  to be helpful but was equally unable to find any information on this matter.

Given that these charges will be coming into effect in just over three weeks, it might be useful if we as safety advisors/consultants knew how to advise our clients.

Rob

John Anderson 5 years ago   Reply

Rob,

I would consider the use of 'material' in context to a breach of legal duty to mean 'significant'.

Regards, 

Liz Bennett 5 years ago   Reply

Most H&S regulation and requirement is designed by those who work in government, in large organisations, on major projects or are highly paid consultants with a strong vested interest in making the whole fearful and complex. They do not take account of the skill in people's hands and experience of team working.

How can an inspector know the complex challenges faced by Designers, Manufacturers with a  range of new technologies, Specialist contractors, those who have been grossly unfairly treated by others further up the supply chain etc? They cannot. They will see something they recognise or perceive as a breach and will be terrier like in pursuit of that single item.

Example: An arborist client of mine was told that if there is only one branch on a tree he is trimming that can be reached from a cherry picker he must hire a cherry picker. Yet at the same time up and down the country there are those pruning and felling trees who have just bought a chainsaw from the DIY store and use it with no training, protection or insurance.

Example: when CDM first came out HSE presumed Designers could design out all hazards. Impossible of course but if teams of top policy people know so little about the technical requirements of design then how can a single inspector cope with the huge diversity of territory they must enforce? Answer they cannot but industry will have to pay while they learn.

Question: Does this extend to EHOs as well? If so heaven help us. Having reported a WRUL disorder absence, a client was visited by EHO who was only interested in eye tests because they had been running an initiative on this topic. Eye test were provided but apparently not promoted sufficiently. Would that cost under this scheme too? I am sure the paperwork will have taken a couple of hours.

bob.youel 5 years ago   Reply

L

U are spot on

 

From: Liz Bennett [mailto:construction-senderhidden@«hidden»]
Sent: 16 March 2012 14:40
To: Construction Discussion Forum
Subject: [construction] Fees for Intervention

 

-- Repeated lines have been removed. Click to show them. --

Most H&S regulation and requirement is designed by those who work in government, in large organisations, on major projects or are highly paid consultants with a strong vested interest in making the whole fearful and complex. They do not take account of the skill in people's hands and experience of team working.

How can an inspector know the complex challenges faced by Designers, Manufacturers with a  range of new technologies, Specialist contractors, those who have been grossly unfairly treated by others further up the supply chain etc? They cannot. They will see something they recognise or perceive as a breach and will be terrier like in pursuit of that single item.

Example: An arborist client of mine was told that if there is only one branch on a tree he is trimming that can be reached from a cherry picker he must hire a cherry picker. Yet at the same time up and down the country there are those pruning and felling trees who have just bought a chainsaw from the DIY store and use it with no training, protection or insurance.

Example: when CDM first came out HSE presumed Designers could design out all hazards. Impossible of course but if teams of top policy people know so little about the technical requirements of design then how can a single inspector cope with the huge diversity of territory they must enforce? Answer they cannot but industry will have to pay while they learn.

Question: Does this extend to EHOs as well? If so heaven help us. Having reported a WRUL disorder absence, a client was visited by EHO who was only interested in eye tests because they had been running an initiative on this topic. Eye test were provided but apparently not promoted sufficiently. Would that cost under this scheme too? I am sure the paperwork will have taken a couple of hours.

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Michael Cox of Michael Cox and Co Ltd 5 years ago   Reply

"Material Breach" is a legal term used in contract law. one definition is "a breach serious enough to destroy the value of the contract and to give a basis for an action for breach of contract" The HSE have decided it seems to use this jargon in their FFI policy. Basically if an inspector calls and there is any breach of Health and Safety Law or Guidance you will expose yourself to FFI being charged while it is being sorted out. Given that this is the method the HSE will use to finance themselves it is unlikely that site visits will not produce FFI charges. The uncertainty is the amendments to the legislation and appropriate definitions of phrases like material breach. Michael Cox

Rob Slater 5 years ago   Reply

Michael, that is THE problem. Because they are keeping the details of what these definitions are it puts us in a ludicrous situation.

To my nind there are many questions that need to be clarified before the Inspectors start dishing out fines. For instance if a hazard has been identified  and is on the action plan but not yet dealt with , will that still count as a breach and therefore open to financial penalty? What are the guidelines the inspectors are to follow?

Yes I know that there is an appeals process being built in to this,  but from what I have seen this will potentially cost even more than the original fine.

Liz Bennett 5 years ago   Reply

Have a look at SHP on line http://www.shponline.co.uk/news-content/full/in-court-live-hse-prepares-inspectors-for-fees-for-intervention

You will see that Material breach is now to be called Contravention.

You will also see that the fees are to be £124 per hour for an inspectors time as against recently reported fees of £51 per hour awarded in HSE costs for an inspector's time.

You will also see that H&S professionals are potentially at risk of claims being made against them by clients.

This is yet another massive H&S cost layer added to industry. Crazy. If you are an inspector you are allowed to use your mobile while driving "Because you were late for a course" and not lose your job but the rest of us have no wriggle room at all.

For me this one is a step too far. I hope it backfires badly. It is not about improved safety but about money grab.

Bill Sowerbutts 5 years ago   Reply

Agreed in every respect and more that I have added in my previous analysis.

Please though in an era where the public Sector is delegating to the private - may I be considered for subcontracted work to make site visits reports and generate letters concerning material breaches. 

Even if my time is £100 and hour – Ill make  a profit and so will HSE – and this looks very profitable work at the expense levels Liz has highlighted.  If security firms can do it on behalf of the prison service, surely we humble qualified consultants may be also thought as of being a worthwhile resource and we can help to generate government income?  With no cost to the taxpayer I can generate 25% profit on my time.

The tongue is firmly in the cheek in case any of you out there thought I was serious about this……

Bill

 

From: Liz Bennett [mailto:construction-senderhidden@«hidden»]
Sent: 08 March 2012 15:41
To: Construction Discussion Forum
Subject: [construction] Fees for Intervention

 

-- Repeated lines have been removed. Click to show them. --

Have a look at SHP on line http://www.shponline.co.uk/news-content/full/in-court-live-hse-prepares-inspectors-for-fees-for-intervention

You will see that Material breach is now to be called Contravention.

You will also see that the fees are to be £124 per hour for an inspectors time as against recently reported fees of £51 per hour awarded in HSE costs for an inspector's time.

You will also see that H&S professionals are potentially at risk of claims being made against them by clients.

This is yet another massive H&S cost layer added to industry. Crazy. If you are an inspector you are allowed to use your mobile while driving "Because you were late for a course" and not lose your job but the rest of us have no wriggle room at all.

For me this one is a step too far. I hope it backfires badly. It is not about improved safety but about money grab.

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Geraint Thomas 5 years ago   Reply
Bill   As funding is being cut, and inspections disproportionately so if Fees for Intervention are not to be introduced,  we need to consider all possible options, including those put forward with tongue in cheek.. I have not found the (few) inspections I have witnessed to be particularly thorough or effective, introducing Fees might well have a positive effect in this regard,  so should remain an option until we can identify a better one. Who better than yourself to be brainstormer in chief?   Regards Geraint  

 
From: Bill Sowerbutts [mailto:construction-senderhidden@«hidden»]
Sent: 08 March 2012 16:35
To: Construction Discussion Forum
Subject: RE:[construction] Fees for Intervention

Agreed in every respect and more that I have added in my previous analysis.

Please though in an era where the public Sector is delegating to the private - may I be considered for subcontracted work to make site visits reports and generate letters concerning material breaches. 

Even if my time is £100 and hour ? Ill make  a profit and so will HSE ? and this looks very profitable work at the expense levels Liz has highlighted.  If security firms can do it on behalf of the prison service, surely we humble qualified consultants may be also thought as of being a worthwhile resource and we can help to generate government income?  With no cost to the taxpayer I can generate 25% profit on my time.

The tongue is firmly in the cheek in case any of you out there thought I was serious about this??

Bill

 

-- Repeated lines have been removed. Click to show them. --

Have a look at SHP on line http://www.shponline.co.uk/news-content/full/in-court-live-hse-prepares-inspectors-for-fees-for-intervention

You will see that Material breach is now to be called Contravention.

You will also see that the fees are to be £124 per hour for an inspectors time as against recently reported fees of £51 per hour awarded in HSE costs for an inspector's time.

You will also see that H&S professionals are potentially at risk of claims being made against them by clients.

This is yet another massive H&S cost layer added to industry. Crazy. If you are an inspector you are allowed to use your mobile while driving "Because you were late for a course" and not lose your job but the rest of us have no wriggle room at all.

For me this one is a step too far. I hope it backfires badly. It is not about improved safety but about money grab.

HSE Construction Forum - construction@«hidden» - Group Homepage - Unsubscribe

 
Bill Sowerbutts 5 years ago   Reply

You are too kind my friend but it’s not a post id seek lightly (not without fees anyway )!!!

 

From: Geraint Thomas [mailto:construction-senderhidden@«hidden»]
Sent: 09 March 2012 13:27
To: Construction Discussion Forum
Subject: RE:[construction] RE: Fees for Intervention

 

-- Repeated lines have been removed. Click to show them. --

Bill

 

As funding is being cut, and inspections disproportionately so if Fees for Intervention are not to be introduced,  we need to consider all possible options, including those put forward with tongue in cheek..

I have not found the (few) inspections I have witnessed to be particularly thorough or effective, introducing Fees might well have a positive effect in this regard,  so should remain an option until we can identify a better one. Who better than yourself to be brainstormer in chief?

 

Regards

Geraint

 

 

 

From: Bill Sowerbutts [mailto:construction-senderhidden@«hidden»]
Sent: 08 March 2012 16:35
To: Construction Discussion Forum
Subject: RE:[construction] Fees for Intervention

Agreed in every respect and more that I have added in my previous analysis.

Please though in an era where the public Sector is delegating to the private - may I be considered for subcontracted work to make site visits reports and generate letters concerning material breaches. 

Even if my time is £100 and hour ? Ill make  a profit and so will HSE ? and this looks very profitable work at the expense levels Liz has highlighted.  If security firms can do it on behalf of the prison service, surely we humble qualified consultants may be also thought as of being a worthwhile resource and we can help to generate government income?  With no cost to the taxpayer I can generate 25% profit on my time.

The tongue is firmly in the cheek in case any of you out there thought I was serious about this??

Bill

 

From: Liz Bennett [mailto:construction-senderhidden@«hidden»]
Sent: 08 March 2012 15:41
To: Construction Discussion Forum
Subject: [construction] Fees for Intervention

 

-- Repeated lines have been removed. Click to show them. --

Have a look at SHP on line http://www.shponline.co.uk/news-content/full/in-court-live-hse-prepares-inspectors-for-fees-for-intervention

You will see that Material breach is now to be called Contravention.

You will also see that the fees are to be £124 per hour for an inspectors time as against recently reported fees of £51 per hour awarded in HSE costs for an inspector's time.

You will also see that H&S professionals are potentially at risk of claims being made against them by clients.

This is yet another massive H&S cost layer added to industry. Crazy. If you are an inspector you are allowed to use your mobile while driving "Because you were late for a course" and not lose your job but the rest of us have no wriggle room at all.

For me this one is a step too far. I hope it backfires badly. It is not about improved safety but about money grab.

HSE Construction Forum - construction@«hidden» - Group Homepage - Unsubscribe

 

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Rob Slater 5 years ago   Reply

I've just watched the vidoe from that article, wherein the speaker clearly states that  ...if advice is given (following the discovery) of the contravention then the FFI  charging period will start at that point, not at the issue of a letter or improvement notice, but as soon as he opens his mouth.

I know this has been through 'consultations' and we are now about to be stuffed by it, but they seem to have moved the goalposts again, so as Michael Cox said in an earlier post, every site visit WILL result in a fine.

IMO this will only serve to make businesses view the HSE and its inspectors with the same love and affection as the Secret Police are viewed in certain dictatorships.

I agree fully with Liz Bennett, this is a step waayyyyyyyyyyyyyy too far, and is nothing more than a revenue generating excerise

Rob

Charlie Says 5 years ago   Reply

I would suggets that a contravention requires the issue of an IN or PN. Simple systems already in place to form a documented audit trail for the inevitable challenges, or will the HSE require conversations of a contravention to be documented resulting in more time and cost to the business?

As a consequence of FFI prehaps we will see more IN's issued. At least it will demonstrate the inspector is knowledgable about the legislation they are enforcing.

Andrew Maxey 5 years ago   Reply

Everyone will wish to note that the Fee for Intervention scheme is being delayed.  HSE's press release dated 15 March can be seen at http://www.hse.gov.uk/press/2012/hse-ffi.htm .

The HSE web page where more guidance will appear in due course is http://www.hse.gov.uk/aboutus/fee-for-intervention/index.htm .

 

Modified by Michael Ryan (5 years ago)
Richard Hulmes 5 years ago   Reply

All to note,

For information the HSE Fee For Intervention (FFI) Scheme has now been delayed and unlikely to start before October 2012 - see www.hse.gov.uk/press/2012/hse-ffi.htm for details.  The reason is because the HSE are having some difficulty with the technical (legal) details of which one will be the definition of a material breach.  The current explanation is that it is one which, in the opinion of the inspector, is a breach which he/she feels sufficient to advise the 'culprit' in writing.  This is unsatisfactory and comes no where near to satisfying the proof required for a criminal law case, which is what it is.  There are also a number of other issues, such as an independent appeals process etc, which has yet to be established.

Regards

 

Richard Hulmes

SAFed 

Michael Ryan 5 years ago   Reply

MODERATOR'S NOTE:

The moderator has been asked to post the following clarification from HSE.

"Mr Hulmes makes a number of points that I would like to clarify:

The discussions that are taking place are about technical accountancy issues and do not affect how the scheme is expected to operate.

With respect to identification of 'material breaches', HSE will not be changing its enforcement practices because of Fee for Intervention. It will continue to use its full range of enforcement options in line with long standing and publicly available policies and decision-making frameworks such as the Enforcement Policy Statement (EPS) and Enforcement Management Model (EMM).

Whilst these regulations are part of the criminal law, they will state that recovery of debt incurred under the regulations is subject to the civil law only. Furthermore, Fee for Intervention is about recovery of the regulator's costs. Prosecution is about public accountability, justice and sanctions and is a matter entirely for the courts.

Gordon MacDonald

Project Director"

 

 

Rob Slater 5 years ago   Reply

"Whilst these regulations are part of the criminal law, they will state that recovery of debt incurred under the regulations is subject to the civil law only."

These comments from Gordon MacDonald actually make the matter worse IMO. If the fees are to be levied on a civil law basis, the burden of proof as we will be aware is far lower than in a criminal case. So once again we are back to the situation whereby an Inspector has had a bad day so everything he sees 'in his opinion'  will contravene some part of some regulation.

 

Then Mr MacDonalds second point  " ...Furthermore, Fee for Intervention is about recovery of the regulator's costs" confirms what we already thought, that fees at more than double an hourly rate charged for an Inspector, it is primarily a money making exercise, and therefore will have little to do with actual safety improvements.

 

Rob

Michael Ryan 5 years ago   Reply

NOTE FROM THE MODERATOR

Guidance for businesses published on website

HSE has today confirmed that its cost recovery scheme, Fee for Intervention (FFI), will start on 1 October 2012 as planned (subject to Parliamentary approval). 

 

New, detailed guidance (http://www.hse.gov.uk/fee-for-intervention/index.htm) has been published on HSE’s website setting out how the scheme will work in practice. Developed in consultation with representatives from industry, it explains how FFI works and includes examples illustrating how it would be applied.

 

The scheme will operate as recommended by HSE’s Board to minister in December having taken account of the formal consultation exercise last Summer.

 

The Health and Safety (Fees) Regulations 2012, which implement FFI, have been laid before Parliament.  A media release http://www.hse.gov.uk/press/2012/hse-ffi2.htm  confirming the implementation date of 1 October 2012 (subject to the relevant Parliamentary processes) and highlighting the publication of guidance has been issued to trade media today.

 

 

Rob Slater 5 years ago   Reply

I have had a quick scan through the FFI guidance notes and have following observations/queries.

para 9 "FFI does not apply to either self-employed people who only put themselves at 9 risk, or employees. ... Where an employee is in material breach and their employer is also in material breach, FFI only applies to the material breach by the employer."

If a 'self employed' builders labourer working on  a domestic extension etc is acting under his 'employers' instruction and is seen to be at fault - ie committing a material breach,  who is liable?

para 23 "The fee will be applied to each intervention where a material breach is identified and any other associated work (paragraph 24). Where the material breach is identified during a visit, costs for the whole visit are recoverable, from the point of entry at the site to the point of leaving. This is because to make appropriate judgements about the action to be taken in relation to material breaches, the inspector has to assess the dutyholder’s capability to effectively manage the risks and comply with the law. This process begins at the start of the visit and continues to the end."

GIven that FFI is purely a money making exercise, when will the 'end ' come? The above says that "costs for the whole visit are recoverable, from the point of entry at the site to the point of leaving", which would surely suggest a pro rata cost of the £124ph  finishing when he leaves site. Or does the 'end' mean when the inspector has returned to his office and his admin staff have typed the slap on the wrist letter.

Rob

Bill Sowerbutts 5 years ago   Reply
How will the HSE give the commercial world confidence that when it visits a site, it is not deliberately trying to find fault with minor issues  so it can issue a statutory notice and thereby satisfy a financial target set by Government?

This is the great danger of this initiative – or should I call it “incentive” – it asks for blame to be attributed – so action can follow and money can be recouped straight away.  As I have pointed out 2 recoveries of £700 and week = £90k per year or two salaried staff.  And no one has been even taken to court to answer their accusers.

And has anyone mentioned the scope for corruption – yes corruption – the opportunity for an inspector to say “grease my palm with £300 and I won’t issue a notice likely to result in £700” – and please don’t say this couldn’t happen – it happens in the police force as we have seen recently so why not with the inspectorate. Besides as an  good, honest inspector you wouldn’t want such a situation to be possible would you? You can’t do this if it goes to court – there is transparency – but you can with spot fines – because that fine is the minimum that is going to be imposed whatever happens…..

Really this is an idea that is full of real concerns and what seems on the face of it a good idea has major deeper moral issues that I can see growing in importance. I would plead with Government to think again before it makes its inspectors “judge and jury” to impose recovery fees (I prefer fines) of £700 or more on businesses.

 

Bill

Rob Slater 5 years ago   Reply

Very hard hitting reply Bill.  unfortunately I think the potential is there.

Rob

Bill Sowerbutts 5 years ago   Reply
And I wish it wasn’t Rob – I have a very good relationship with many local HSE inspectors – I like them on a personal level and we discuss all kinds of things.  I don’t want to see that relationship become confrontational – and that’s exactly what I predict is going to happen here.  An inspector will = a spot fine – that’s how they will be seen – it doesn’t help them and it doesn’t help the “no blame culture” we might want to achieve and it doesn’t help progress which is far better achieved if everyone is broadly on the same side.

Bill

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