Fees for intervention: Are you prepared for a visit from the HSE?

John Southall: So, Andrew - we are here today to talk about fees for intervention. Fees for intervention were introduced back in 2012 by the HSE (October 2012), at that time, introduced for two reasons really: one, to generate an income stream for the HSE. The secondary reason was to obviously increase compliance, hopefully, throughout industry by having another mechanism by which people could feel a bit of pain.

At that time the HSE proposed (or expected) to bring in revenue of around about £43m per year. Actually, in the three years that this has been running, they have now only invoiced £35m and, out of that, they have only collected £26m of that money, so way below the targets that they have set.

How do you think that is going to affect the HSE's operation, going forward?

Andrew Litchfield: So what I think we have seen are inspectors increasingly looking to charge for as much of their time as possible, finding material breaches where, perhaps, in the past, they would otherwise have just given a bit of informal advice that we are now seeing more letters written after a visit alleging a material breach and expecting the business to rectify and then to refund the HSE for their time, and I think, given the figures you suggested, about how successful they have been with recovering the money, we are going to see more of that in the future.

John: I think from our point of view, as a consultancy business supporting lots of businesses around the UK, we are certainly seeing, as you say, more appetite for material breach letters being written, and I think what that is leading to is a negative impact. Businesses are now less inclined to invite the HSE in to have a chat about a particular issue. We have certainly seen, in one case, the HSE were invited in to have a look at something that the business thought were doing well, and ended up in a situation where there was a material breach recognised, which I do not think is useful for anybody involved.

Going forward, then, what do we think businesses should be doing if they have a visit from the HSE regarding fees for intervention?

Andrew: So I think, if you are in the construction sector or in manufacturing, for example, that is where a lot of the inspections still take place, so if you are in those sectors, I think you need to expect a visit from the HSE, sooner rather than later, and you need to expect them to be looking for a material breach, and so it is really important that as soon as the HSE arrive on site, be aware that, although it might be a visit about one topic, they might branch off and look at absolutely everything, so be aware and be ready for that when they arrive. Engage in debate with the HSE. Do not be fearful about pushing back if you feel that what they have found or what they are commenting on is, in fact, okay and not a material breach, and be prepared to engage in argument with them, or debate with them as to how you need to be complying, and if possible, if there is something that can be fixed very quickly and very easily, then fix it there and then, because it reduces the amount of time spent on the issue and that will reduce the amount of the invoice.

John: I think the other interesting thing to mention, really, to close, is this idea of a material breach. We can talk for hours about what a material breach is because even the HSE are finding it difficult to kind of define what that is. I think, in summary, what they are saying is it is a legal contravention that they have found. The difficulty then, we have certainly identified, is that if you get a letter which is a fee for intervention, (a) it is a civil matter, so it is not a fine, so they have got to collect it through a civil court if you refuse to pay, but, secondly, if you are a commercially-minded organisation, you think "You know what? Actually, I am not going to upset my enforcing agency - I am simply going to pay the £500/£600/£1,000 fee", what is your advice to those businesses?

Andrew: So I think there is a distinction to be drawn between the principle of whether something is a material breach or not, and the commercial decision about whether to pay the invoice. There is a risk that payment of the invoice might be used in the future to argue that there was an acceptance that there was a material breach, so I think it is important, if you disagree, to write to the HSE to say we disagree that that was a material breach, and explain why, but then also say, if you have chosen to pay the invoice, that paying the invoice should not be taken as an admission that that material breach had taken place.

The other thing to do, of course, is to look carefully at the invoice and look at the amount of time on the invoice. The HSE should only be recovering their reasonable expenses, so look at the amount of time and also, if you feel strongly, dispute with them the amount of time they have spent on it.

John: Super. Okay, thank you, Andrew - I mean, one thing is clear: this is going to continue, so, until next time, thank you.