Consent order lays ground for HSE’s new FFI appeals process
Thursday 16th March 2017
Clarity on the appeals' process schedule and its main features emerged after the High Court approved a consent order at the end of February.
Under the consent order -- a court decision on the terms consented to by the HSE and international facilities management company OCS Group UK -- the regulator has agreed for the first time to disclose its evidence and reasoning to dutyholders who appeal against FFI charges, and to appoint a new independent panel of judges to adjudicate on disputed bills. It will also consult with stakeholders on the details of the new system formally introducing it by 1 September.
As reported in last month's IOSH Magazine, the HSE's decision to overhaul the system was prompted by OCS Group UK's successful application for a judicial review of the FFI cost recovery process. The hearing at the High Court was scheduled for 8 March but OCS Group UK withdrew its application after the consent order was agreed between the two parties.
Under the proposed new process, an independent and impartial three-strong panel of experts will determine disputes. Chaired by a lawyer from the Attorney General's civil panel, the two remaining panellists will have "practical experience of health and safety management". In appropriate cases, the panel will have the discretion to convene a meeting with the HSE inspector who levied the charge and the dutyholder to consider the dispute and will make recommendations on how it can resolved.
The HSE will also have to provide a summary to the dutyholder that outlines why its inspector has concluded that there has been a material breach of health and safety law. It will have to back this up with evidence/information that explains how this opinion was reached and why the costs incurred are reasonable.
The dutyholder will then have an opportunity to respond in writing. In its submission, the dutyholder can submit any information, documents or evidence that will support its case as why there has not been a material breach and/or that the costs are unreasonable.