Client suddenly deems you inside before April

[northernladuk]

I've got the TLC35 insurance, and had the current contract reviewed by QDOS as 'outside', but if the client decides at any time to do an assessment, and in order to cover themselves, decides to make it 'inside' regardless, then the insurance could be instantly invalid, even for any retrospective contract prior to the client assessment, and even if you give notice straight away and leave ?

If so, what's the point in having TLC35 ?

The peace of mind I had, suddenly just disappeared

But it won't be as you've stated it. It's been mentioned at least twice they'll still honour it if there is a reasonable chance of success. With the history of HMRC in court that's pretty much given bearing in mind they've an odd win and split case and that's it. That is unless Seb knows of many that paid up before court or weren't reported but the fact we don't know about it means it won't be significant.

Yes if your circumstances change then the validity of the insurance will change, just like any insurance, but to worry that it automatically invalidates any of the time you spend in the outside gig is just wrong. Your peace of mind comes from you knowing IR35 very well, doing your own diligence (contract checkes etc) and keeping your own working practices outside.
If you've just got your insurance and relied solely on that, not caring a hoot about the rest of it then yes, the realisation that your TLC has a chance of not paying out is a problem but purely of your own making.

I think you are looking at it a bit one dimensionally here.

[WordIsBond]

Perhaps Seb would comment, but I'd assume that the insurance would be withdrawn from the time the circumstances changed, not from the inception of the policy.

So if a client does an evaluation that a contract is inside, and QDOS decides they won't cover it anymore, I think they'd have a hard time making that withdrawal retroactive. You've acted in good faith, I assume QDOS would, too.

[jk3838]

But it won't be as you've stated it. It's been mentioned at least twice they'll still honour it if there is a reasonable chance of success. With the history of HMRC in court that's pretty much given bearing in mind they've an odd win and split case and that's it. That is unless Seb knows of many that paid up before court or weren't reported but the fact we don't know about it means it won't be significant.

Yes if your circumstances change then the validity of the insurance will change, just like any insurance, but to worry that it automatically invalidates any of the time you spend in the outside gig is just wrong. Your peace of mind comes from you knowing IR35 very well, doing your own diligence (contract checkes etc) and keeping your own working practices outside.
If you've just got your insurance and relied solely on that, not caring a hoot about the rest of it then yes, the realisation that your TLC has a chance of not paying out is a problem but purely of your own making.

I think you are looking at it a bit one dimensionally here.

I constantly keep evidence of lack of S,D&C, MOO, have ROS in the contract, have TLC35 and had the current contract reviewed by QDOS as 'outside'

HOWEVER, if the client decides to do an assessment and (incorrectly, to cover their own backsides) determines my current role as 'inside', then I would have to tell QDOS, who would probably say, all the evidence I have is trumped by having now had a client 'inside' assessment as having been done, and that they then wouldn't have a good enough chance of success in order to represent me so wouldn't ?

So, like the OP, as my client is also talking of doing an assessment of all contractor's current roles in the coming months, should I be leaving before said assessment so as to not invalidate my TLC35 for retrospective protection ?

[jk3838]

Perhaps Seb would comment, but I'd assume that the insurance would be withdrawn from the time the circumstances changed, not from the inception of the policy.

So if a client does an evaluation that a contract is inside, and QDOS decides they won't cover it anymore, I think they'd have a hard time making that withdrawal retroactive. You've acted in good faith, I assume QDOS would, too.

This

Seb

Are you still covered for the period before the client 'inside' assessment, done mid contract, or not ?

[northernladuk]

This

Seb

Are you still covered for the period before the client 'inside' assessment, done mid contract, or not ?

[seb] yes [/seb]

[northernladuk]

I constantly keep evidence of lack of S,D&C, MOO, have ROS in the contract, have TLC35 and had the current contract reviewed by QDOS as 'outside'

HOWEVER, if the client decides to do an assessment and (incorrectly, to cover their own backsides) determines my current role as 'inside', then I would have to tell QDOS, who would probably say, all the evidence I have is trumped by having now had a client 'inside' assessment as having been done, and that they then wouldn't have a good enough chance of success in order to represent me so wouldn't ?

So, like the OP, as my client is also talking of doing an assessment of all contractor's current roles in the coming months, should I be leaving before said assessment so as to not invalidate my TLC35 for retrospective protection ?

You are making a right meal of this if you don't mind me saying so. Think about it a bit.

If you have an outside gig, diligence and evidence is there, QDOS say it is and are willing to offer insurance then you are golden. If the client pushes it inside incorrectly it doesn't matter to the current gig. It's wrong. It won't affect any court case because it's incorrect and your existing contract/working practices are outside.

It's also quite possible the new gig is different. They aren't willing to offer RoS so it's not in the contract for example. It's in your existing one and has been proven in court that still stands even if the client didn't want to honour it. If the new gig is different then it has no bearing on the old one.

[jk3838]

You are making a right meal of this if you don't mind me saying so. Think about it a bit.

If you have an outside gig, diligence and evidence is there, QDOS say it is and are willing to offer insurance then you are golden. If the client pushes it inside incorrectly it doesn't matter to the current gig. It's wrong. It won't affect any court case because it's incorrect and your existing contract/working practices are outside.

sorry that you think I'm making a 'right meal of this'

I just want to know from QDOS if the insurance becomes invalid if a client suddenly does an incorrect 'inside' assessment at any time

You're saying it won't, but others are suggesting it will, I just want the hear it 'from the horses mouth'

Seb himself states ''so if the client suddenly declares you are caught by IR35 then it immediately makes any defence far more difficult''

[Qdos Contractor]

Again, it's difficult to make a blanket statement on this. If, however, there is an audit trail and due diligence to back up the original 'outside' position, then retrospective cover will be available.

[northernladuk]

sorry that you think I'm making a 'right meal of this'

I just want to know from QDOS if the insurance becomes invalid if a client suddenly does an incorrect 'inside' assessment at any time

You're saying it won't, but others are suggesting it will, I just want the hear it 'from the horses mouth'

Seb himself states ''so if the client suddenly declares you are caught by IR35 then it immediately makes any defence far more difficult''

Indeed but you are mixing up situations. The statement above indicates he declares the contract you are in is inside (with valid reasons) but the other situation is he declares the new contract in 2020 inside because they don't know the rules and are playing safe. Very different situation and the differentiation between the two seems to be getting lost as this progresses.

In your situation he isn't suddenly declaring you inside. They are making a declaration on a future gig which will have different T&C's. There is also a host of assumptions around your current contract.

If QDOS won't honour insurance taken in good faith with correct diligence then we've all got a problem.

[northernladuk]

Again, it's difficult to make a blanket statement on this. If, however, there is an audit trail and due diligence to back up the original 'outside' position, then retrospective cover will be available.

I think you've missed the question he's asking, although understandable as he keeps chopping and changing question but he does state clearly in this one.

I just want to know from QDOS if the insurance becomes invalid if a client suddenly does an incorrect 'inside' assessment at any time

Has to be a flat no surely.