R (OCS Group UK Limited) v Health and Safety Executive
10th March 2017
2017 Administrative Court
Successful Judicial Review proceedings challenging the HSE’s dispute process for challenging findings of contravention and fees issued under the Fee for Intervention (FFI) scheme and two specific notices.
The HSE settled the judicial review out of court shortly before the hearing. FFI was introduced in 2012 with the aim of passing the cost of health and safety regulation from the taxpayer to businesses that, in the opinion of an HSE inspector, are in “material breach” of safety legislation. The challenge was not to the principle of FFI but rather to the process for challenging notices of contravention and fees issued under the scheme. The challenge was on the basis that the exiting scheme lacked independence, fairness and transparency. The strength of the case was recognised by Kerr J who, when granting permission for judicial review, observed: “It is arguable that the HSE is, unlawfully, judge in its own cause when operating the FFI scheme; and that the scheme is either unlawful or being operated in an unlawful manner”. The claim was settled by consent. The HSE agreed to introduce a revised process for determining disputes on or before 1 September 2017 which addresses these concerns, to withdraw the two specific notices and to pay OCS’s costs.