The Health and Safety Executive (HSE) has published a consultation document revealing details of its plans to charge duty-holders for serving enforcement notices and for providing advice to remedy health and safety failings that do not warrant prosecution. The cost recovery system will see inspectors charge businesses whenever they find a “material breach” of the law.

If a ”material breach” is found charges will be calculated retrospectively from the start of the visit up to and including the time spent to ensure the breach has been remedied. A provisional hourly rate of £133 is proposed and the estimated average costs are as follows;

a) No costs for an inspection with no action taken.

b) £750 for an inspection which results in a letter.

c) £1500 for an inspection which results in an enforcement notice.

d) £750 through to several thousands or in extreme cases tens of thousands of pounds where investigations ensue.

The consultation raises a number of issues. Firstly, there is no definition of what constitutes a” material breach”. An HSE spokesman has indicated that too much depends on context to provide a definition. This clearly will allow for discussion between the duty-holder or its legal representative and the HSE as to what is “material” but also might open the door to a possible scenario whereby a duty-holder may be persuaded that a breach should be accepted as” material” to avoid prosecution.

Secondly, the provisions for disputing the imposition of such charges propose that disputes are resolved by an HSE principal inspector and then by a senior manager with the cost of the time spent added to the charge if the judgement goes against the duty-holder. This does not present a fair impartial dispute resolution system and is likely to attract criticism from respondents to the consultation.

Thirdly, the charging system will introduce a new dynamic to the relationship between inspectors and duty-holders with the obvious risk that the relationship will become less constructive as duty-holders may believe the scheme is money making exercise and question the inspectors’ impartiality. This will be exacerbated if targets are set.

The scheme does not include businesses such as shops and offices whose compliance is governed by local authorities as local authorities have shown little enthusiasm for the proposals.

Make no mistake, despite the apparent flaws, cost recovery will go ahead .The suggested yield is some £43 million per year and the HSE suggest that charging could be implemented as soon as next April. Be warned and be prepared.

Tim Andrew is Head of Regulatory Law at Burton Copeland LLP