Health and Safety Executive consult on cost recovery
The HSE have recently issued a consultation document(response is due no later than the 14 October 2011) on theprinciple of recovering the cost of their work. This is knownformally as an intervention. In practice what this means is that ifyou have breached Health and Safety law, and have been required inwriting to rectify the breach, then the HSE will be able to recoverall costs of that intervention. This is known as the fee forintervention. A request to formally rectify a breach could be byany number of means, but would typically be by way of a formalimprovement or prohibition notice, or less formally by e-mail orletter.
These proposals will only apply where an organisation isfound to be in what is called material breach. Material is definedas when there has been a breach of Health and Safety law whichrequires the HSE to make a formal intervention. Conversely wherethere has been a technical breach, namely a breach of Health andSafety law which does not require a formal intervention, there willbe no costs levied.
This principle of recovery of HSE costs is not what is beingconsulted upon. This has been agreed by the Government and costsrecovery will occur. The consultation refers only to the detail ofrecovery. The HSE would not have a discretion but would be obligedto recover the cost of intervention. These costs would cover aperiod starting with the intervention up to and including the pointwhere the intervention is concluded. Costs will include follow upintervention, such as site visits and phone calls, the provision ofany specialist assistance, the costs of writing letters and reportsand drafting and issuing of improvement or prohibitionNotices.
The Government announced in March 2011 a moratorium from allnew domestic regulations for 3 years for businesses of less than 10employees and for genuine new start ups. It has been confirmed thatthis moratorium will not apply to these proposals for costsrecovery except for a self employed duty holder.
The amount of costs which will be recovered will becalculated on the basis of total time expended multiplied by therelevant recovery rate. The averaged hourly fee recovery rate iscurrently estimated at £133.00 for all HSE staff but the rate couldbe different for specialist laboratory staff or non HSE specialistsupport. The consultation estimates costs of £750.00 for aninspection which is followed by a letter. That amount wouldincrease to approximately £1500 where an inspection results in anenforcement notice. For an investigation costs range fromapproximately £750 "through to several thousands of pounds to, inextreme cases, tens of thousands of pounds." The document containsdetails of a disputes resolution procedure in the event of the feesbeing challenged.
The costs recovery procedure will happen, it is just amatter of when. It is expected that these regulations might beimplemented in time to become law by April 2012.
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.