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 the principle of recovering the cost of their work. This is known formally as an intervention. In practice what this means is that if you have breached Health and Safety law, and have been required in writing to rectify the breach, then the HSE will be able to recover all costs of that intervention. This is known as the fee for intervention. A request to formally rectify a breach could be by any number of means, but would typically be by way of a formal improvement or prohibition notice, or less formally by e-mail or letter. 

These proposals will only apply where an organisation is found to be in what is called material breach. Material is defined as when there has been a breach of Health and Safety law which requires the HSE to make a formal intervention. Conversely where there has been a technical breach, namely a breach of Health and Safety law which does not require a formal intervention, there will be no costs levied. 

This principle of recovery of HSE costs is not what is being consulted upon. This has been agreed by the Government and costs recovery will occur. The consultation refers only to the detail of recovery. The HSE would not have a discretion but would be obliged to recover the cost of intervention. These costs would cover a period starting with the intervention up to and including the point where the intervention is concluded. Costs will include follow up intervention, such as site visits and phone calls, the provision of any specialist assistance, the costs of writing letters and reports and drafting and issuing of improvement or prohibition Notices.

The Government announced in March 2011 a moratorium from all new domestic regulations for 3 years for businesses of less than 10 employees and for genuine new start ups. It has been confirmed that this moratorium will not apply to these proposals for costs recovery except for a self employed duty holder. 

The amount of costs which will be recovered will be calculated on the basis of total time expended multiplied by the relevant recovery rate. The averaged hourly fee recovery rate is currently estimated at £133.00 for all HSE staff but the rate could be different for specialist laboratory staff or non HSE specialist support. The consultation estimates costs of £750.00 for an inspection which is followed by a letter. That amount would increase to approximately £1500 where an inspection results in an enforcement notice. For an investigation costs range from approximately £750 "through to several thousands of pounds to, in extreme cases, tens of thousands of pounds." The document contains details of a disputes resolution procedure in the event of the fees being challenged. 

The costs recovery procedure will happen, it is just a matter of when. It is expected that these regulations might be implemented in time to become law by April 2012.

Posted on: 09/08/2011

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.

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