Staying in the same public sector contract after April 2017

[WelshLad]

Hi All,

I've been lurking around the forums for a long time but never felt the need to post anything. However I thought it would be good to share the experience I've had with the PS client I'm currently at in terms of the legislation changes.

My current situation is I am contracting at a Public Sector Body via a CL1 contract, this contract ends on 1st April but I have an extension on the table until 30th September but have yet to sign this until they clarified my IR35 status. I was in the lucky position in that I confirmed (with my own eyes) with the PS body that the contract my company signed had the same terms and conditions that the call off contract between themselves and Capita. These terms specifically mentioned no MoO, no SDC, RoS clause etc etc. All this along with working practices signed off by the PS body were assessed by Qdos and deemed to be outisde IR35.

In January I found myself in a position where ideally I would need to provide a substitute for a few days. I approached the PS client regarding this expecting them to refuse but to my surprise they were actually very open to the idea. After some discussions I got the relevant written approvals to authorize the substitution and the PS client didn't need to interview them prior to them arriving on site. The substitute later attended site, carried out the service I would usually do to a level acceptable to the PS client and were paid via my company.

Roll on a month to February and the PS clients Finance and Commercial Team's informed all contractors on site that they have made some decisions regarding everyone's IR35 status, they based these decisions on the framework the contractor was provided through. Their decision was that all contractors provided via GCloud and DOS are outside IR35 and all contractors provided via Capita CL1 are inside IR35, regardless of the actual working practices of each individual. I attempted to fight this decision with some help of the relevant people at the PS client, the Agency supplying me and Capita themselves however they wouldn't budge. When the ESS tool was released they agreed to run what they believed to be my working practices through the tool which of course gave an outside decision as soon as they answered the RoS questions, they weren't very happy about this!

Despite the clear evidence available to them they informed me today that they will not be changing their minds and that they will be informing Capita/Agency that I am inside IR35, my response was obviously to not accept the extension and I've already ensured that any payments due to my company will be maid prior to 6th April.

Needless to say the whole process has been pretty frustrating, and I'm now in a position where I have to leave a client in the middle of a deliverable piece of work for which they do not have the relevant in house skills, which is not a position I'm entirely comfortable with.

[LondonManc]

So, client ran the tool with HR today. My role came out Outside IR35. But, then HR dept came up with the following: "both Xxx and xxx are via Real Staffing agency therefore they will be inside IR35 as the Agency currently pay them and will not be able to send someone else in to undertake the work." Why bother to do assessments if you think every person via an agency is caught inside?

Client is frantic and seeking another meeting with them - I'm back to my original plan - I.e. If you think it's inside I'm gone! Can't be bothered to tell HR they're wrong - I'm sure the agency will try when I tell them

That statement in itself makes any right of substitution clause in their contract a sham; the working practices trump the contract and if that one doesn't stand, how many more bogus "outside" claims are there in the contracts.

You need to run through the rights in your outside IR35 contract and confirm that the working practices do not conflict with them. If you can get a statement from the client to this effect, together with Andy's comments from earlier (points a-e), then you should be fine.

[DaveB]

More roles coming through the Digital Outcomes and Specialists frame work.

This from the Homes and Communities Agency.

Maximum day rate
This is an outside IR35 arrangement, attracting a maximum day rate of £500 (including all costs and fees associated with the arrangement).

Work setup


Address where the work will take place
The worker can generally choose where they work, however the team uses one of our offices in London (Marsham Street) as a connection point, and there is an expectation that the worker will use this office for project related activities that need their attendance in person.

Working arrangements
The worker will manage their own working arrangements as required to deliver the assignment. For reasons of security, the HCA will provide encrypted laptop loaded with secure software.

Some people appear to be paying attention...

[jamesbrown]

Some people appear to be paying attention...

It's amusing, though, that the descriptions that come with some of these "outside" positions would probably fall inside or undetermined under the ESS, although the use of the tool is discretionary.

[ShandyP]

Could I please ask advice around my position. I currently contract for the public sector via a Limited Company. I have worked like this for approximately 7 years.

Beyond March, I will be able to stay on with an improvement in the day-rate but will have to go PAYE via an umbrella. I will be invoicing same agency as before (although I could change as the client has a choice of 3 or 4). My issue is around what risk I have with regards a retrospective investigation by the HMRC? I appreciate there is no definitive answer on this, but would the general advice be to leave? Would changing my agency be worth doing to another of those available?

Any advice on this appreciated.

[teapot418]

Hi All,

I've been lurking around the forums for a long time but never felt the need to post anything. However I thought it would be good to share the experience I've had with the PS client I'm currently at in terms of the legislation changes.

My current situation is I am contracting at a Public Sector Body via a CL1 contract, this contract ends on 1st April but I have an extension on the table until 30th September but have yet to sign this until they clarified my IR35 status. I was in the lucky position in that I confirmed (with my own eyes) with the PS body that the contract my company signed had the same terms and conditions that the call off contract between themselves and Capita. These terms specifically mentioned no MoO, no SDC, RoS clause etc etc. All this along with working practices signed off by the PS body were assessed by Qdos and deemed to be outisde IR35.

In January I found myself in a position where ideally I would need to provide a substitute for a few days. I approached the PS client regarding this expecting them to refuse but to my surprise they were actually very open to the idea. After some discussions I got the relevant written approvals to authorize the substitution and the PS client didn't need to interview them prior to them arriving on site. The substitute later attended site, carried out the service I would usually do to a level acceptable to the PS client and were paid via my company.

Roll on a month to February and the PS clients Finance and Commercial Team's informed all contractors on site that they have made some decisions regarding everyone's IR35 status, they based these decisions on the framework the contractor was provided through. Their decision was that all contractors provided via GCloud and DOS are outside IR35 and all contractors provided via Capita CL1 are inside IR35, regardless of the actual working practices of each individual. I attempted to fight this decision with some help of the relevant people at the PS client, the Agency supplying me and Capita themselves however they wouldn't budge. When the ESS tool was released they agreed to run what they believed to be my working practices through the tool which of course gave an outside decision as soon as they answered the RoS questions, they weren't very happy about this!

Despite the clear evidence available to them they informed me today that they will not be changing their minds and that they will be informing Capita/Agency that I am inside IR35, my response was obviously to not accept the extension and I've already ensured that any payments due to my company will be maid prior to 6th April.

Needless to say the whole process has been pretty frustrating, and I'm now in a position where I have to leave a client in the middle of a deliverable piece of work for which they do not have the relevant in house skills, which is not a position I'm entirely comfortable with.

It should be for the end client to determine status, not Crapita.

If you're an IPSE member, drop them an email - this is exactly the sort of case they are interested in.

[northernladuk]

Could I please ask advice around my position. I currently contract for the public sector via a Limited Company. I have worked like this for approximately 7 years.

Devil is in the details and just saying 7 years isn't giving us much. Same role? Same client?

Beyond March, I will be able to stay on with an improvement in the day-rate but will have to go PAYE via an umbrella. I will be invoicing same agency as before (although I could change as the client has a choice of 3 or 4). My issue is around what risk I have with regards a retrospective investigation by the HMRC? I appreciate there is no definitive answer on this, but would the general advice be to leave? Would changing my agency be worth doing to another of those available?

Any advice on this appreciated.

So they are saying your role is inside so they've effectively admitted the role you are doing is inside so you would be an easy target for a tax grab yes. If it's 7 years same client, same WP then that is one hell of a low hanging fruit!! 7 years makes anyone look like a permie even if they have an IR35 tight contract let alone them admitting you are inside. etc. You are on the backfoot proving you aren't.

Will they come after you? Who knows but you know the 7 year history. How much is going to cost you in a worst case. Is it worth just swapping agencies (who will still report the same thing)? Not that you can just swap agencies though, your handcuff won't allow that.

Did you get tax insurance at all? I'd be surprised if you would get it retrospectively now the role is deemed inside.

I think the general advice given would be, as a minimum, change your PS client and agent. Better still get out and go PS. You've left it late with only 2-3 weeks left on the clock.

[NHS1979]

That statement in itself makes any right of substitution clause in their contract a sham; the working practices trump the contract and if that one doesn't stand, how many more bogus "outside" claims are there in the contracts.

You need to run through the rights in your outside IR35 contract and confirm that the working practices do not conflict with them. If you can get a statement from the client to this effect, together with Andy's comments from earlier (points a-e), then you should be fine.

The interesting dynamic is that HR is a shared team among 5 NHS organisations. They are in the background and have to approve any of the 5 organisations bringing someone in (permission to spend the money, not looking at Jds or deliverables). But they don't look at contracts and are not involved in any working practices, including substitution. So local directors and bosses can say they're happy with a substitute, and suddenly this hr crowd have said they're not sure.

All 5 organisations, and all of their various directorates, are all now at loggerheads with HR. Another staggering email came out today telling all direct contractors that after 17.3.17 (Friday) they will be deemed inside. They are all planning to walk out, causing chaos. Chief execs have been phoning in from ski slopes lol.

Doesn't affect me as I am via an agency and leaving if it's deemed inside. But there's some real drama going on out there folks!

[Andy Hallett]

Devil is in the details and just saying 7 years isn't giving us much. Same role? Same client?



So they are saying your role is inside so they've effectively admitted the role you are doing is inside so you would be an easy target for a tax grab yes. If it's 7 years same client, same WP then that is one hell of a low hanging fruit!! 7 years makes anyone look like a permie even if they have an IR35 tight contract let alone them admitting you are inside. etc. You are on the backfoot proving you aren't.

Will they come after you? Who knows but you know the 7 year history. How much is going to cost you in a worst case. Is it worth just swapping agencies (who will still report the same thing)? Not that you can just swap agencies though, your handcuff won't allow that.

Did you get tax insurance at all? I'd be surprised if you would get it retrospectively now the role is deemed inside.

I think the general advice given would be, as a minimum, change your PS client and agent. Better still get out and go PS. You've left it late with only 2-3 weeks left on the clock.

Not sure why change agency makes any difference. I am fairly sure we don't report the end client on RTI, and switching to an umbrella means a new fee payer.

[Semtex]

Devil is in the details and just saying 7 years isn't giving us much. Same role? Same client?



So they are saying your role is inside so they've effectively admitted the role you are doing is inside so you would be an easy target for a tax grab yes. If it's 7 years same client, same WP then that is one hell of a low hanging fruit!! 7 years makes anyone look like a permie even if they have an IR35 tight contract let alone them admitting you are inside. etc. You are on the backfoot proving you aren't.

Will they come after you? Who knows but you know the 7 year history. How much is going to cost you in a worst case. Is it worth just swapping agencies (who will still report the same thing)? Not that you can just swap agencies though, your handcuff won't allow that.

Did you get tax insurance at all? I'd be surprised if you would get it retrospectively now the role is deemed inside.

I think the general advice given would be, as a minimum, change your PS client and agent. Better still get out and go PS. You've left it late with only 2-3 weeks left on the clock.

This is not correct. If the PS org has made a blanket statement about its contractors then he could have been performing an outside role. Its not black and white as you have stated.