October 1, 2017
HSE Announces New Way to Challenge FFIs and NoCs
Following a successful challenge by a firm in September 2016, the HSE has announced a new procedure to challenge Fees for Intervention (FFIs) bills and Notices of Contraventions (NoCs).
The new process, which came into force 1 September, will require the HSE to disclose information to complainants about how inspectors decided the organisation was in “material breach” of the law – the trigger for an NoC.
The information disclosed will be similar to the ‘disclosure of documents’ procedure currently adopted by the courts, whereby all parties know of all documents that have a bearing on the case or, in this case, the Notice of Contravention.
The new process follows a six-week consultation that ended in June 2017.
How will disputes be resolved under the changes?
The disputes will be led by an independent panel who will examine documented evidence and scrutinise for correlation against the alleged “material breach”.
The panel will have the authority to call meetings with the duty-holders and the HSE to clarify allegations, however no witness may be called and the exercise is purely to examine the evidence gained by the HSE to determine a breach had occurred.
Duty-holders will also have the opportunity to question how the decision was reached and whether this would have any bearing on the overall outcome.
It is not yet known how the cost of the dispute process will be recouped.
The impact on HSE methodology
HSE inspectors’ work and methodology will be under further scrutiny as the procedure now calls for transparency through the full disclosure of information.
This removes the opportunity for NoCs to be issued under ambiguous circumstances as we have seen previously where, in the opinion of an HSE inspector, there has been a material breach that requires them to issue a notice in writing of that opinion to the duty-holder.
As this new procedure affects the initial decision of the HSE, one would hope that there would be a proportionate review of HSE methodology and inspection to bring all aspects of the process under the same kind of transparency and scrutiny.