Results of the public sector consultation is up

[jamesbrown]

Isn't that more to do with the timing of the determination rather than who is making the determination.

The one thing I was looking for (and some agencies were no doubt fearing / hoping for) was whether agencies could determine the result and that doesn't appear to be the case....

It comes down to whether you interpret:

falls within the new off-payroll rules

As falls within a determination or falls within a determination and is determined inside. You may be correct, but they could've been much clearer about this. For example:

Following representations, the government has decided not to introduce the separate
gateway tests outlined in the consultation document. The government agrees that the
proposed gateway tests only work as designed if the person using them already
understands employment status case law – and that most people would still need to
go on to carry out the full test. Instead, engagers and agencies will be able to use the online tool alone; providing
simplicity and certainty from day one of the contract.

Why agencies? I think that the information sharing requirement could be just that. In other words, the public authority must share information, but not necessarily make the determination. Your interpretation is still quite likely, though, and that was my first interpretation too, but I changed my mind upon re-reading, not so much about what would happen in practice, but more about whether the legal requirement is on the client to actually make the determination.

[fool]

Decision is made by the end client, agencies don't have much say in it....

Will need to triple check that but that seems to be what all the documentation states...

This is the interesting part. Even if you're delivering well and on amazing terms with your public sector point of contact, you're going to struggle to convince a structurally different legal, contract or procurement department to decide the status in your favour.

I guess here ends the gravy train, unless you have someone with a lot of juice willing to bat for you, which is where the 90% figure actually makes sense.

[eek]

It comes down to whether you interpret:



As falls within a determination or falls within a determination and is determined inside. You may be correct, but they could've been much clearer about this. For example:



Why agencies? I think that the information sharing requirement could be just that. In other words, the public authority must share information, but not necessarily make the determination. Your interpretation is still quite likely, though, and that was my first interpretation too, but I changed my mind upon re-reading, not so much about what would happen in practice, but more about whether the legal requirement is on the client to actually make the determination.

I remember that but I'm assuming the technical notes override the consultation response...

[eek]

Just found the example descriptions outside the flow charts @ https://www.gov.uk/government/public...-note#examples .

Light reading there but it seems if you work with staff on a daily basis, sit in their office or use their hardware you are screwed.

[mudskipper]

I think the draft legislation is saying "it's the client". (IANAL)


61M Engagements to which Chapter applies
(1) Sections 61N to 61R apply where—
(a) an individual (“the worker”) personally performs, or is under
an obligation personally to perform, services for another
person (“the client”),
(b) the client is a public authority,
(c) the services are provided not under a contract directly
between the client and the worker but under arrangements
involving a third party (“the intermediary”), and
(d) the circumstances are such that—
(i) if the services were provided under a contract directly
between the client and the worker, the worker would
be regarded for income tax purposes as an employee
of the client or the holder of an office under the client,
or
(ii) the worker is an office-holder who holds that office
under the client and the services relate to the office.


61S Information to be provided by clients and consequences of failure
(1) If the conditions in section 61M(1)(a) to (c) are met in any case, and a
person as part of the arrangements mentioned in section 61M(1)(c)
enters into a contract with the client, the client must inform that
person (in the contract or otherwise) of which one of the following is
applicable—
(a) the client has concluded that the condition in section
61M(1)(d) is met in the case;
(b) the client has concluded that the condition in section
61M(1)(d) is not met in the case.
-------------------

(61M(1)(d) - see above is the 'you're IR35 caught' bit)

[eek]

I think the draft legislation is saying "it's the client". (IANAL)


61M Engagements to which Chapter applies
(1) Sections 61N to 61R apply where—
(a) an individual (“the worker”) personally performs, or is under
an obligation personally to perform, services for another
person (“the client”),
(b) the client is a public authority,
(c) the services are provided not under a contract directly
between the client and the worker but under arrangements
involving a third party (“the intermediary”), and
(d) the circumstances are such that—
(i) if the services were provided under a contract directly
between the client and the worker, the worker would
be regarded for income tax purposes as an employee
of the client or the holder of an office under the client,
or
(ii) the worker is an office-holder who holds that office
under the client and the services relate to the office.


61S Information to be provided by clients and consequences of failure
(1) If the conditions in section 61M(1)(a) to (c) are met in any case, and a
person as part of the arrangements mentioned in section 61M(1)(c)
enters into a contract with the client, the client must inform that
person (in the contract or otherwise) of which one of the following is
applicable—
(a) the client has concluded that the condition in section
61M(1)(d) is met in the case;
(b) the client has concluded that the condition in section
61M(1)(d) is not met in the case.
-------------------

(61M(1)(d) - see above is the 'you're IR35 caught' bit)

Yep. I was operating on the following basis:-

Technical note is what they are aiming for
Law should be identical but could be screwed up (see April with umbrella companies and the T&S first run).
Consultation discussion earlier document that doesn't really matter any more so things may be wrong there.

And the technical note does say client determines (albeit can be slow upto 31 days after engagement about doing so)...

Most of the examples are real taking the mickey examples though....

But the bit in red is going to give the unions a field day....

[youngguy]

The agency will pay secondary*NICs*related to the engagement, as it does for directly employed people
.

That's not going to be absorbed by agencies without a change to their margins

[eek]

That's not going to be absorbed by agencies without a change to their margins

Which means that agencies are going to need determination before they spend time looking for people....

[SlipTheJab]

Whats going to happen to a lot of the contractor accountants I wonder, if I was caught and in the PS come next year I would (IF I wanted to continue in the PS) bin the Ltd and go Brolly as, the resident ones that usually post on here have been very quiet of late

[youngguy]

Which means that agencies are going to need determination before they spend time looking for people....

Absolutely.the one 'good thing' of this is that there Should be clarity before the role goes to the agent and is therefore advertised so agents and contractors can decide if it is worth it to their business .


Imagine a world where agents won't bid for a role due to the taxes THEY incur 😉