Its fine roll it out to the private sector.

[Andy Hallett]

On the face of it, those genuine independent contractors have nothing to fear.

[SueEllen]

Interesting....

[RonBW]

But but but.. the agency doesn't know the way I work and why would they take want to put their balls on the line? Their answers won't be the same as mine. Their answers will be biased to low risk, generalisation and guesswork.

The determination should be made by the client, not the agent. The agent is merely the payer in the chain who needs to deduct taxes if the client determination says that the role is inside.

[Semtex]

it still all boils down to the Client completing the determination. For fear of fines and back payments of tax and NI they may be more conservative with the answers to CTA.

[Andy Hallett]

The major issue I can see is the indeterminate result, no help to man nor beast.

That's why I like the QDOS review, binary result.

[BigRed]

So if you insist on WFH one day a week and have to use your own equipment because you aren't insured for their kit it's a double win

[RonBW]

The major issue I can see is the indeterminate result, no help to man nor beast.

That's why I like the QDOS review, binary result.

The major issue that I can see is that it doesn't seem to include any case law in the logic.

But I agree - the indeterminate result is fairly easy to hit, so what happens in that situation? I guess that the client should email HMRC or ring them as the page suggests, and inundate them with enquiries. I'm sure that HMRC have the resources to deal with that - people have highlighted this to them since the Autumn Statement, so they must be prepared

[Qdos Contractor]

There were some fairly significant updates between the beta that was running yesterday and the live version today. If anything, the beta version was too lax – i.e. you were outside with no substitution or control if you had financial risk.

They’ve obviously tightened it up and I do have some concerns. We’ve got to remember that it may well be the client who is completing this. Substitution is a familiar concept to us, but perhaps not to a hiring manager at a PS organisation. My worry is not the question itself, but the explanatory text.

“Won't be interviewed by the end client before they start”

This is a bit misleading. An engager is entitled to ensure a substitute is sufficiently skilled and qualified and it would be perfectly acceptable for them to meet said replacement. I can imagine PS clients getting slightly nervy if they thought that wouldn’t be possible and it’s all down to semantics.

“Will be substituted because the worker is unwilling but not unable to do the work”

I don’t understand this one at all. In Express & Echo Publications Ltd vs Tanton, the case was ultimately decided on a clause in the agreement which stated a substitute could be provided if they were “unable or unwilling” to provide the services. If you are ill you are both unable and unwilling and I can’t see how that can determine whether a right of substitution is genuine.

In the beta it was very difficult to get an indeterminate result; now that seems to be common if there is no substitution. For all HMRC’s focus on "SDC" in other legislations, I find it somewhat surprising that it is given far less credence than personal service in the ESS. In case law they hold equal importance.

Seb

[chopper]

So potentially, a bunch of PS contractors may have prematurely ejected themselves? Put themselves on the bench for no good reason?

[RonBW]

So potentially, a bunch of PS contractors may have prematurely ejected themselves? Put themselves on the bench for no good reason?

Mebbe aye, mebbe naw.

As much as we can look at the tool and say "if I answer it this way, I'm outside so it's fine", that doesn't mean that (a) a public sector client will bother to use the tool to make a determination for the individual; and (b) the client will complete the questions in the same way that the contractor might.

For example, I misread the question about being an officer of the client company and thought it meant my company - instant inside judgement (as it should be). As with everything IR35, you've only got to get the wrong person answer the question slightly wrong and you could be in for a world of pain.

So, those contractors who left because their client said that they would not make a judgement and would just decree everyone was inside may well have made the right move - but it's always going to be an individual judgement about whether to leave or not.