New gig sold as outside IR35 - how to make sure this is the case ?

[northernladuk]

Yes I knew that and they are not the only one apparently.
What's your shortlist of preferred Umbrellas ?

I've already said. Clarity Umbrella. They are most lists and if they aren't I call Lucy, dob the agent in it and she goes and beats them up, or talks the hind legs off them. Not sure which is worse but generally works.

[philgo]

I've already said. Clarity Umbrella. They are most lists and if they aren't I call Lucy, dob the agent in it and she goes and beats them up, or talks the hind legs off them. Not sure which is worse but generally works.

Ok. I never got proposed them in short list from clients in my industry.
Usually I am offered Giant, Paystream which I don't like hence I went for JSA/Workwell last time. Maybe I should check and try to get my money back from them...

[philgo]

It's fairly straightforward:

1. Are you working on an end client site and/or interacting with end client staff regularly (client being the entity that commissioned the service, not the consultancy/agency)?
2. Is the end client a medium or large company according to the CA 2006?

If your answer to both of these questions is "yes", then the contract falls under Chapter 10 and you must insist on an SDS from the end client (via the agent/consultancy). You should also check the contract carefully for claw-back clauses, which may work, in principle. This has nothing to do with overriding statute law. If your answer to (1) is "no", then it may be a fully outsourced service and you should answer (2) with respect to the consultancy, which is then the "end client" in your chain. If the answer to (2) is "no", then it's Chapter 8 (aka "old IR35"), else Chapter 10.

The only real complexity here is whether it is truly an outsourced service if the answer to (1) is "no". In most cases, and I suspect in your case, the answer to (1) is clearly "yes", so there is really no complexity.

As I think you were offering with this reply one of the best compelling answer to my vague initial post (sorry) here is more details following a call with the agent from the consultancy.

So:
The consultancy is a supplier for the end client (large). Agreement is a SOW. (Not sure it's my business to know the deal he has with the end client but good to know I suppose).
The consultancy is outsourcing the resource as do not have the skillset in house for that role.
The consultancy is using my LTD services to provide the expertise.
So my LTD company end client in this chain is the consultancy company which is a small business so contract falls under chapter 8.
I will need to do a self assessment status of the role as per initial discussion. So he was not lying on that.
The SDS he provided me yesterday is the one he did for his consultancy to also assess the client role for which he is the supplier. (again not sure it's my business but might be useful information)
He also has another contract relationship with another LTD company working for the same end client on a different assignment with same framework. Not saying it means what they have done is right but it's already in place.

Role :
It will require to interact with the consultancy's end client staff.
There is no end client nor end end client supervision.
I use my own equipment.
There is no team nor project working on this assignment.
I can chose the way the work will be done.

Does this seems slightly better in terms of the the who do what and how or simply does this way of working seems compliant?
Can he outsource the expertise like that?

Any more thoughts welcome apart from the idea to go with Umbrella as I am checking this in the background already. Thanks.

[malvolio]

As I think you were offering with this reply one of the best compelling answer to my vague initial post (sorry) here is more details following a call with the agent from the consultancy.

So:
The consultancy is a supplier for the end client (large). Agreement is a SOW. (Not sure it's my business to know the deal he has with the end client but good to know I suppose).
The consultancy is outsourcing the resource as do not have the skillset in house for that role.
The consultancy is using my LTD services to provide the expertise.
So my LTD company end client in this chain is the consultancy company which is a small business so contract falls under chapter 8.
I will need to do a self assessment status of the role as per initial discussion. So he was not lying on that.
The SDS he provided me yesterday is the one he did for his consultancy to also assess the client role for which he is the supplier. (again not sure it's my business but might be useful information)
He also has another contract relationship with another LTD company working for the same end client on a different assignment with same framework. Not saying it means what they have done is right but it's already in place.

In terms of the role itself, it will require to interact with the consultancy's end client staff.

Does this seems slightly better in terms of the the who do what and how or simply does this way of working seems compliant?
Can he outsource the expertise like that?

Any more thoughts welcome apart from the idea to go with Umbrella as I am checking this in the background already. Thanks.

Nope. Still depends on the role. If the "consultancy" is providing a complete turnkey solution to their client then you may escape IR35, but only if you are not under Direction and Control of the client. If the consultancy are merely supplying you as a warm body with specific expertise, then you are more than likely inside regardless.

HTH. BIDI. My best estimate is that you will be inside regardless of the various contractual hooplas.

[jamesbrown]

The consultancy is outsourcing the resource as do not have the skillset in house for that role.

Not sure how many more ways I can say that you should forget this Chapter 8 fairy story. You are a resource being supplied directly to the end client, as you've said yourself. That falls squarely within Chapter 10 and the consultancy's end client is the end client w/r to IR35, responsible for the SDS. You and the agent can pretend as much as you want that the consultancy is providing a managed service at arms length, but I will bet you a tenner that HMRC disagrees when they discover that the end client has their own PM(s) and is providing day-to-day oversight of your work as a bum-on-seat resource at the end client. I can only assume that you haven't read the ESM 10010 that I referenced several times or chose to ignore it. We've already established that your agent ("consultant") is clueless and your choosing to believe them is based on (your) hope over (our) experience. I really have nothing more to add on this, other than best of luck.

[philgo]

Nope. Still depends on the role. If the "consultancy" is providing a complete turnkey solution to their client then you may escape IR35, but only if you are not under Direction and Control of the client. If the consultancy are merely supplying you as a warm body with specific expertise, then you are more than likely inside regardless.

HTH. BIDI. My best estimate is that you will be inside regardless of the various contractual hooplas.

It helps. I have updated the role section with more info to explain the how. Not sure if something missing.

[philgo]

Not sure how many more ways I can say that you should forget this Chapter 8 fairy story. You are a resource being supplied directly to the end client, as you've said yourself. That falls squarely within Chapter 10 and the consultancy's end client is the end client w/r to IR35, responsible for the SDS. You and the agent can pretend as much as you want that the consultancy is providing a managed service at arms length, but I will bet you a tenner that HMRC disagrees when they discover that the end client has their own PM(s) and is providing day-to-day oversight of your work as a bum-on-seat resource at the end client. I can only assume that you haven't read the ESM 10010 that I referenced several times or chose to ignore it. We've already established that your agent ("consultant") is clueless and your choosing to believe them is based on (your) hope over (our) experience. I really have nothing more to add on this, other than best of luck.

Actually as I just updated on post in section role it's not the typical role you are thinking of where you are part of a project team etc...There is no PMs nor client supervision. They do not have anyone on site that could do this job or supervise it. So to me this part looks fine as it means I am not under control and supervision of the consultant end client.

[jamesbrown]

Actually as I just updated on post in section role it's not the typical role you are thinking of where you are part of a team project etc...There is no PMs nor client supervision. They do not have anyone on site that could do this job or supervise it.

How do you know when you haven't started the job? If you can get the consultancy to put in writing that they are delivering a managed service to the end client that does not fall within Chapter 10 and that they are a small company under the CA 2006 and that Chapter 8 applies and, further, that the contract has no claw back clauses, then knock yourself out. It is still a fairy story, most likely, but at least you've covered yourself... probably (but, honestly, no one really knows how Chapter 10 will pan out from a contract law POV). My guess is that the consultancy won't be willing to put all that in writing in any case. Again, best of luck, I'm out.

[philgo]

How do you know when you haven't started the job?

Spoke with both consultancy and consultancy's client. In my field everything the consultancy's client does is outsourced via managed services. So they have no one including PMs that could manage this on site. And it's not a project with a framework and a team etc...

If you can get the consultancy to put in writing that they are delivering a managed service to the end client that does not fall within Chapter 10 and that they are a small company under the CA 2006 and that Chapter 8 applies and, further, that the contract has no claw back clauses, then knock yourself out.

That bit is the sticky point.

[philgo]

How do you know when you haven't started the job? If you can get the consultancy to put in writing that they are delivering a managed service to the end client that does not fall within Chapter 10 and that they are a small company under the CA 2006 and that Chapter 8 applies and, further, that the contract has no claw back clauses, then knock yourself out. It is still a fairy story, most likely, but at least you've covered yourself... probably (but, honestly, no one really knows how Chapter 10 will pan out from a contract law POV). My guess is that the consultancy won't be willing to put all that in writing in any case. Again, best of luck, I'm out.

And I can confirm it's sticky after reading the ESM10010 again and again. Not sticky regarding autonomy as I clearly will have no supervision neither control.

The main concern is the consultancy company trying to make this work as a contracted out service whereas I will be mainly interacting with its end client and this would in fact make it my end client. So I should therefore request SDS chapter 10 blablabla...
Contractually it "might" work but that's all. In practice reading ESM10010 examples I'm not convinced anymore.

That was a good learning curve in less than 2 days.