Consent order lays ground for HSE’s new FFI appeals process
Thursday 16th March 2017
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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.
Kilsaran Concrete, based in Dunboyne, County Meath, was fined last February following the death of Barry Gargan, 28. The company pleaded guilty to breaching s 8(2)(a) of the Safety, Health and Welfare at Work Act 2005, contrary to s 77(9)(a), for failing to ensure the safety and welfare of its workers.
This equated to 4.3 days per worker, the lowest number since records began in 1993, when the average was 7.2 per worker. In 2016, the overall sickness absence rate (the proportion of working hours lost due to sickness or injury) in the UK was 1.9%, down slightly from 2% the previous year.
A lorry had arrived at the DFS Lincoln House upholstery factory in Derbyshire on 2 July 2015 and the victim – a goods-in operative – and his co-worker were unloading a pallet of wooden sofa arms from the box trailer. The arms, each weighing approximately 11 kg, had been stacked approx 11-high on the pallet and were unsecured. The victim had both arms stretched above his head to try and steady the load while his colleague used a pallet truck to remove the pallet from the box trailer. As he did, a loose arm caught on the roof of the vehicle and fell 1 m on to the victim’s head.
Maurice Mason, which runs Hall Farm, Fincham, near King’s Lynn, Norfolk, failed to adequately identify and manage the risks associated with cleaning grain stores. The company failed to put a safe system of work in place for the task and it did not provide suitable training.The Health and Safety Executive (HSE) investigation found that 21-year-old Arthur Mason was taking turns with a colleague to clean inside the grains bins on the farm when the incident happened on 9 July 2014.
The accident involved an employee of Inflite Engineering Services and an agency worker, who were carrying out checks to the tail of an aeroplane, Chelmsford Magistrates' Court was told.The two men were standing on MEWPs either side of the plane's tail when another worker closed the wrong circuit breaker, inadvertently opening the air brakes (used to increase drag or the angle of approach during landing) and knocking over both platforms.