In order to head off a High Court legal battle with facilities management company, OCS Group, the HSE has re-structured its Fee for Intervention (FFI) appeal process. In Oct 2016, following a material breach of the Control of Vibration at Work regulations involving strimmers, OCS Group was granted a first hearing over the way the HSE handles FFI appeals, alleging that the regulator was in breach of “natural justice”. The claimants counsel argument centered on the HSE effectively acting as "prosecutor, judge and jury" in a situation where it has “a financial interest in imposing, maximising and upholding fees.”
It was initially expected the HSE would defend the claim by contending the FFI charge is a civil penalty more akin to a parking ticket than a criminal offence and therefore does not warrant the safeguards of a full judicial appeal process. However on 9th February, the HSE issued a press release announcing that it was “to consult on proposals to make its cost recovery scheme dispute process fully independent”. It’s understood that the content of these proposals formed the agreement negotiated between the HSE and OCS and embodied in a legally binding “consent order” issued by the High Court on 23 February.
Both parties have subsequently agreed to cease legal proceedings and the HSE is to consult on the proposed amendments to its disputes process. The proposals under consultation include the HSE having to disclose its evidence and reasoning to the duty holder in breach and appoint a new adjudication panel of independent experts. Health and Safety at Work reports the new procedure must be in in place by 1st September 2017.