NHS 'trying not to blink'

[Finance]

Induced financial risk is not the same as business financial risk: you are responsible for creating the former, your client for the latter. You don't have to work at a distance that means it costs lots to get there after all.

As for Officers, they are positions that, regardless of the occupant, have to exist for the organisation to operate (in private companies, they will be defined in the Articles, in public ones in their charter). Job titles have no relevance. If a non-employee is in an Office, they will effectively have to be paid under IR35 anyway. Hence the prominence of that question in the ESS tool - if you are an Officer then you are caught, end of discussion.

That's what I was saying.....

[NotAllThere]

I tried to reply to The Times comments but it wouldn't let me for some reason. Less hate on The Maily Telegraph but still only one or two who seem to understand.

This one is a gem:

IR 35 and PSCs have been abused by doctors, especially locums for years.
The image of the career locum charging round the country do a day here, a week there is a small section of this overpaid swindle. Many locums stay for a year or more or do prolonged periods.
They are using these rules to exploit the NHS. If they will lose 40% of pay then they were avoiding tax in a criminal manner.
Locums should always be paid at the bottom of the pay scale. Their work is generally inferior and many are not up to date.
This waste of money needs to stop. It is right PSCs are outlawed and back taxes over the last 5 years collected, where do they think they are working, Greece?

And when it's demonstrated he's talking rubbish

First Trusts are doing what Hunt told them to do and are reducing the TOTAL pay AND, tax IS going to be deducted at source to prevent tax avoidance. Also HMRC has been asking for names for some time so locums are probably en mass going to be charged back taxes and get ready for a large wave of prosecutions. PSCs are now banned as well so the whole rotten scam is ending.

[TheFaQQer]

This one is a gem:

And when it's demonstrated he's talking rubbish

The Telegraph comments section has someone arguing that because Contractor Calculator have a blog post that says that 50% of people that used their tool would have failed, that's evidence that contractors pay little or no tax

[TheFaQQer]

Financial risk has long been established in case law as being inconsistent with employment. It is why the tool (and its predecessor) has the question on expenses. You have seen the tool?

I'll repeat the question.

Which of the three pillars of employment (SDC, MoO, RoS) does this fall into?

Believe me, I've seen the tool

[Andy Hallett]

Please find some clarification around ‘Office Holder’. Based on my understanding of office holder it wouldn’t apply to most PSC contractors we review.

The drafting of the relevant question and notes within the tool is:

Is the worker or their business an office holder for the end client?

An office is a permanent, substantive position that exists independently from the person who fills it. Holding office includes board membership or statutory board membership, or being appointed as a treasurer, trustee, company director, company secretary or other similar statutory roles.



I suspect the wording of the question is sourced any subsequently explained within ESM2502 https://www.gov.uk/hmrc-internal-man...manual/esm2502 :

Offices: definition
The holder of an office is automatically chargeable under Schedule E/as employment income on the emoluments from it and generally there will also be liability for Class 1 NICs. It is not necessary to show, as for an employee, that an office holder works under a contract of service. And from 6 April 2003, Section 5 ITEPA 2003 applies the provisions of the employment income Parts of that Act equally to offices, unless otherwise indicated.

There is no statutory definition of the word ‘office’. It has been judicially defined as a

‘permanent, substantive position which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders.’

[Rowlatt J in Great Western Railway Company v Bater 8TC231.]

That definition was approved in the more recent case of Edwards v Clinch 56TC367 with the proviso that a post need not be capable of permanent or prolonged existence but it must have an endurance at least beyond the tenure of one man. Buckley LJ stated

‘An office in this context is, in my opinion, a post which can be recognised as existing, whether it be occupied for the time being or vacant, and which, if occupied, does not owe its existence in any way to the identity of the incumbent or his appointment to the post. It follows, I think, that the office must owe its existence to some constituent instrument, whether it be a charter, statute, declaration of trust, contract (other than a contract of personal service) or instrument of some other kind. It also follows, in my view, that the office must have a sufficient degree of continuity to admit of its being held by successive incumbents: it need not be capable of permanent or prolonged or indefinite existence, but it cannot be limited to the tenure of one man, for if it were so it would lack that independent existence which to my mind the word “office” imports. It may be that it should in some degree possess a public character, but it is not necessary to decide that point in this case, for the taxpayer’s functions in respect of which fees were received undoubtedly had such a character.’When the same case reached the House of Lords, Lord Wilberforce said

‘For myself I would accept that a rigid requirement of permanence is no longer appropriate, nor is vouched by any decided case and continuity need not be regarded as an absolute qualification. But still, if any meaning is to be given to “office” in this legislation, as distinguished from “employment” or “profession” or “trade” or “vocation” …. It must denote a post to which a person can be appointed, which he can vacate and to which a successor can be appointed.’


Offices: how an office is created
An office may be created by a charter, statute, or other document which is, or forms part of, the constitution of an organisation or which governs its operation. For example, a director of a company is an office holder because the Companies Act requires a company to have a board of directors and similarly all companies are required to have a company secretary; a Special Commissioner holds an office created by the Taxes Acts. There is no statutory definition of ‘director’ but the term includes executive, non-executive and nominee directors.

But not everyone who carries out duties specified by the law is an office holder. A local authority has a statutory duty to collect refuse but a dustman does not hold an office. On the other hand a Returning Officer does hold an office because not only the duties but also the ‘post’ is established by law.

The appointment of a succession of individuals to a post or job title is not in itself sufficient to establish an office. An office is a separate and independent position to which duties are attached; an office does not owe its existence to the incumbent or the discretion of an organisation. For example, the post of manager of a factory or a head of division in an organisation is not an office because such a post will normally only exist as long as the organisation wishes. It will not have the independent existence or endurance required to establish it as an office.

An office can also be created by custom. But if there is no written authority there must be a long-standing practice or unwritten constitution which makes the existence of the office clear.

The following are examples of posts which are or may be offices

· company director and company secretary
· clergyman
· coroner
· chairperson or member of a Rent Tribunal, VAT Tribunal, etc
· Local Veterinary Inspector (LVI)
· sub-postmaster/sub-postmistress
There are of course many others.

If you have any doubts about whether a particular post is an office, you should in the first instance ask for reference to specific statute, or for a copy of any instrument or documentation which brings the post into being. For example, in the case of a club secretary, you should ask to see the constitution and rules of the club.

[Finance]

Yes. In practice in an NHS organisation the voting board members as I said. Vast majority of contractors are not on the board so are not officers.

[malvolio]

Yes. In practice in an NHS organisation the voting board members as I said. Vast majority of contractors are not on the board so are not officers.

Perhaps, but not de facto...

Generalisations apart the whole reason we have this idiot situation is because the Student Loans Company hired a contractor, sat him in a substantive position and then paid him as though he were a contractor. That is a breach of several rules, done mainly to get around CS pay scale restrictions, so Alexander - Lib Dem Dumbo No 3 after Clegg and St Vince of Cable - created a whole new set of rules to prevent something that was already perfectly adequately prevented, and those have now morphed in the politicians' minds as confirmation that all we are doing is getting out of paying our "fair" taxes.

Faced with such idiocy, arguing about angels on pinheads suddenly seems a more worthwhile occupation.

[Andy Hallett]

NHS 'trying not to blink'

As I understand the issue with the Student Loans guy was he was hired as an expert to do a turnaround. His working practices changed when he took the substantive role. He therefore started outside, then effectively moved inside IR35.

[Finance]

In the past there have been numerous contractors in posts that are clearly officers - voting board members such as cfo and CEO - at NHS trusts who were outside ir35 and on big rates. The sort that get into the daily mal. All changed now though.
Temporary board posts are now sourced from big 4 at twice the cost.

[b r]

Look back at my posts, I think you'll find I was pretty much (one of) the first to state "best you don't need A&E over Easter", predicting that once the locums see their first post-new-rules payments they'll take Easter off.

tbh it was pretty obvious to anyone with a knowledge of temp recruitment and the NHS.