Fees for Intervention: What they are and when to dispute them

Breaching health and safety laws is expensive. Here, we explore when a business might face costs for a material breach, when and how a business can dispute an invoice, and why avoiding them entirely is always the best approach.

Unannounced visits from the Health & Safety Executive (HSE) can be stressful enough, without facing costs for a material breach of health and safety legislation.

What is a material breach?

According to the HSE, a material breach is “something which an inspector considers serious enough that they need to formally write to the business requiring action to be taken to deal with the material breach.”

The HSE lists examples of material breaches in Appendix 1 of its Guidance on the Application of Fee for Intervention (FFI), such as a failure to assess and manage key areas of risk, a lack of suitable Personal Protective Equipment (PPE) and using workers to complete tasks for which they are neither competent nor properly trained.

Using the HSE’s Enforcement Management Model (EMM) and Enforcement Policy Statement (EPS), as well as referring to relevant legislation, regulatory guidance, and industry standards to review the extent of the breach, an inspector may provide the ‘dutyholder’ of the business – such as the client, Principal Designer, or Principal Contractor – with a Notice of Contravention (NOC).

Often used in conjunction with an Improvement or Prohibition Notice, a NOC notifies a dutyholder of the breach, and the reasons why an inspector considers it to be a material one. It also triggers the Fee for Intervention (FFI) invoicing process.

What is a Fee for Intervention (FFI)?

Under The Health & Safety and Nuclear (Fees) Regulations 2022 (‘the Fees Regulation’), the HSE has a legal duty to recoup any costs associated with material breaches of health and safety legislation, including the inspection that originally identified the breach, and any subsequent interventions.

In many cases, this is done via a Fee for Intervention (FFI), in which an hourly rate is charged by the HSE to pay for the time the HSE spends investigating and identifying the nature and extent of the breach.

For 2024/25, that hourly rate increased from £166 to £174. This is, according to the HSE, to “make sure we continue to recover the full cost of any relevant activity.”

There are certain exceptions to when an FFI is applied, for example where another fee is payable for the purpose of health and safety regulations, such as the Control of Major Accident Hazards (COMAH). FFIs also do not apply where the HSE is not the enforcing authority, or where the breach does not relate to statutory provisions as defined in the Health and Safety at Work etc. Act 1974.

Once a dutyholder receives an FFI invoice, they have 30 days to pay it. The HSE has powers to pursue any unpaid invoices via debt recovery procedures, including through the civil courts.

Can I dispute an FFI?

Although the HSE aims for all inspections and interventions to be fair, thorough, and efficient, there may be times when a business believes that a NOC has failed to account for certain elements of a business’ processes or procedures and has therefore not correctly qualified the gap between the benchmark and actual levels of risk.

Under Regulation 25(6) of the Fees Regulation, the HSE must “provide a procedure by which disputes relating to fees for intervention will be considered.” This is explained in ‘Fees for Intervention – query and dispute process’, which outlines the procedure dutyholders must follow when wishing to dispute an invoice, or certain elements of the invoice.

The HSE is also only entitled to claim costs by way of an FFI once a material breach has been identified. Therefore, any costs that are claimed prior to a material breach being identified can be challenged.

In the first instance, dutyholders must lodge a query with the HSE’s FFI team, which will either manage the query or forward it on to the principal inspector. If a query is not upheld, dutyholders can then proceed to a dispute.

From here, the case will go to an independent panel, which will meet to discuss the dispute and reach a decision. As this is not a hearing, dutyholders cannot usually attend the panel meeting, nor can they invite witnesses to do so. They can, however, submit further representations, information, and evidence in the 21 days preceding the meeting. The HSE is also required to provide all relevant information concerning the original invoice to help dutyholders build their case.

How can I avoid an FFI?

As with most aspects of health and safety, prevention is always better than cure. Dutyholders can avoid FFIs by continuously monitoring and managing risks at their workplace, aided by regularly updated risk assessments, as well as comprehensive records of training, inspections, near-misses, and method statements.

In the wake of the rising number of fatalities in the construction industry, the HSE’s efforts to build greater visibility and presence in workplaces across the UK are likely to increase.

Businesses are well advised to review their current approaches to health and safety now to ensure an inspector’s visit is not concluded with a large invoice. Our expert team at Gateley provide health and safety training and can support in any reviews that are undertaken by businesses.