10th March 2017
Keith Morton QC, instructed by Mike Appleby Partner of Fisher Scoggins Waters and representing OCS Group UK Limited, brought judicial review proceedings against the Health and Safety Executive’s (HSE) dispute process for challenging findings of contravention and fees issued under the Fee for Intervention (FFI) scheme. The HSE settled the judicial review out of court shortly before the hearing in the Administrative Court listed on 8 March 2017. The HSE also agreed to set aside two Notices of Contravention it had issued against OCS.
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 HSE effectively acted as prosecution, judge and jury in its own cause. 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. In the consent order approved by the Court on 23 February 2017, HSE has agreed to introduce a revised process for determining disputes on or before 1 September 2017 which addresses these concerns. The schedule to the consent order sets out the detail of the revised process which HSE will now consult stakeholders upon. As part of the settlement HSE has also agreed to withdraw the original FFI notification of contravention that led to the judicial review and to pay OCS’s costs.