Hi, Apologies if a similar thing has bee mentioned I did a search and couldn't see anything.
So I've had my SDS (Status Determination Statement) and the client has found me inside IR35.
They have used the CEST tool and for he question
“Has the worker ever sent a substitute to do this work?”
They have answered
"No it has not happened".
However I have provided a substitute on a number of occasions, paid them from my company account and have never once had the client reject them.
They argued
"Firstly, we believe that due to the nature of the work, requirement for vetting/ appropriate security clearances and the lengthy onboarding process, any substitute would not be a viable alternative to you performing the work. This would suggest the right is not genuine or exercisable and no ‘blanket’ or unfettered right to provide a substitute exists.
A key consideration here is that the contractual right to provide a substitute is not unlimited and we would be able to exercise a level of control over any exercising of this right (e.g in the event we disagreed the proposed substitute was suitably qualified). In your appeal you state that you have previously sent a substitute. We did look into whether it could consider this as a ‘genuine’ use of the substitution clause within CEST. Whilst you have not provided specific examples, it is our understanding that the individual(s) used as a substitute were contractors either already engaged or approved by us. On this matter, the ESM at ESM11045 states that: ‘A client will have the right to reject a substitute if: - the contract specifies that the worker will perform the work and is silent on substitution; - the hirer has an explicit right to reject a substitute; - the worker can only provide a substitute from a pre-approved pool of workers.’ (emphasis added) In the event LM would only consider or accept a substitute from its pre-approved pool of contractors, the ESM confirms that this demonstrates LM’s right to reject a substitute. On this basis, this cannot be considered for the purposes of CEST if the right exercised was not genuine, but instead exercised in a way designed to demonstrate substitution for these purposes"
My thoughts were that that the quoted ESM (Employment Status Manual) refers to the question about weather of not the client has the right to deny a substitute, that only get asked if the preceding "Has the worker ever sent a substitute to do this work?" question is not answered with a "Yes, and they were accepted"
Apologies for the long question.
I guess what I'm asking is given that I have provided a substitute (on numerous occasions) does their argument hold any water?
So I've had my SDS (Status Determination Statement) and the client has found me inside IR35.
They have used the CEST tool and for he question
“Has the worker ever sent a substitute to do this work?”
They have answered
"No it has not happened".
However I have provided a substitute on a number of occasions, paid them from my company account and have never once had the client reject them.
They argued
"Firstly, we believe that due to the nature of the work, requirement for vetting/ appropriate security clearances and the lengthy onboarding process, any substitute would not be a viable alternative to you performing the work. This would suggest the right is not genuine or exercisable and no ‘blanket’ or unfettered right to provide a substitute exists.
A key consideration here is that the contractual right to provide a substitute is not unlimited and we would be able to exercise a level of control over any exercising of this right (e.g in the event we disagreed the proposed substitute was suitably qualified). In your appeal you state that you have previously sent a substitute. We did look into whether it could consider this as a ‘genuine’ use of the substitution clause within CEST. Whilst you have not provided specific examples, it is our understanding that the individual(s) used as a substitute were contractors either already engaged or approved by us. On this matter, the ESM at ESM11045 states that: ‘A client will have the right to reject a substitute if: - the contract specifies that the worker will perform the work and is silent on substitution; - the hirer has an explicit right to reject a substitute; - the worker can only provide a substitute from a pre-approved pool of workers.’ (emphasis added) In the event LM would only consider or accept a substitute from its pre-approved pool of contractors, the ESM confirms that this demonstrates LM’s right to reject a substitute. On this basis, this cannot be considered for the purposes of CEST if the right exercised was not genuine, but instead exercised in a way designed to demonstrate substitution for these purposes"
My thoughts were that that the quoted ESM (Employment Status Manual) refers to the question about weather of not the client has the right to deny a substitute, that only get asked if the preceding "Has the worker ever sent a substitute to do this work?" question is not answered with a "Yes, and they were accepted"
Apologies for the long question.
I guess what I'm asking is given that I have provided a substitute (on numerous occasions) does their argument hold any water?
Comment