IR35 when it is public sector

[BlueSharp]

OK I'm bumping this up because I've come across something a bit bizarre and would like to understand if any of you have ever experienced a similar situation.

Contract role at a public sector organization, the agency advertises it as outside ir35 which is also written all over the job spec from the client. Everything good on paper, BUT at the interview, when asked about the project I'd be working on, the client just says there's not one specific project but it's mainly BAU, support of permanent staff (they don't have a permie with my skillset) and other bits and bobs.

Now, what's the deal with that? Why have they deemed the contract outside when it clearly is inside?

Are they trying to get away with it, thinking the focus of hmrc will be on private sector companies rather than public sector ones?

Am I missing something?

As long as you get a copy of the determination from the client you are good to go. Why would BAU be clearly inside? Client accepts your right to a Sub (as close to a silver bullet we can get), no MOO (HMRC argue it is present in every contract, courts disagree), limited D&C. WOuld put it outside.

[PCTNN]

One possibility is that they are happy to accept a substitute - that gives a straight outside determination on CEST.

Yes, it's a possibility, but given all the security checks that need done before starting, I doubt it.

Anyway, thanks very much for all the replies and advice. Personally, I'm very averse to risk so in case I get an offer, I will decline it.

[JohntheBike]

your contract may have been. What about the working practises?

I suppose in theory BAU is OK as long as you have deliverables, and you don't deviate from those deliverable. Proving that is likely harder though.

If you are in effect doing the same work as a permie, just paying less tax, then I'd not fancy your chances in a tribunal trying to argue that you're not a disguised employee. I'd be buying TLC35 at that point.

the contract review includes extensive questions about working practises in conjunction with the contract. But just to recap

I work exclusively from home.
No one supervises me in person, clearly.
No one directs what I do, or how I do it, it is a reactive role, i.e. if there is an issue within my responsibilities, I am required to fix it.
There are no UK based permies employed doing the same role.
I attend at hours solely at my choosing but generally during office hours, there is a 24 hour SLA.
MyCo has professional indemnity insurance.
MyCo has employer and public indemnity insurance.
and finally, I have a contractual right of substitution.

I can't see HMRC being able to successfully challenge those in the FTT.

oh, and I have tax investigation insurance provided by Markel Tax.

[northernladuk]

the contract review includes extensive questions about working practises in conjunction with the contract. But just to recap

I work exclusively from home.
No one supervises me in person, clearly.
No one directs what I do, or how I do it, it is a reactive role, i.e. if there is an issue within my responsibilities, I am required to fix it.
There are no UK based permies employed doing the same role.
I attend at hours solely at my choosing but generally during office hours, there is a 24 hour SLA.
MyCo has professional indemnity insurance.
MyCo has employer and public indemnity insurance.
and finally, I have a contractual right of substitution.

I can't see HMRC being able to successfully challenge those in the FTT.

oh, and I have tax investigation insurance provided by Markel Tax.

Add in the fact you've been doing it for 14 years will further encourage HMRC whatever the outcome.

When did yourCo having insurance have anything to do with IR35

But, as always, why has this come round to you again?

[JohntheBike]

Add in the fact you've been doing it for 14 years will further encourage HMRC whatever the outcome.

When did yourCo having insurance have anything to do with IR35

But, as always, why has this come round to you again?

Add in the fact you've been doing it for 14 years will further encourage HMRC whatever the outcome.

you know full well that length of contract has little or no bearing on employment status.

When did yourCo having insurance have anything to do with IR35

It's one of the questions asked by the insurers who believe that having such insurance is a pointer to self employment. Do keep up.

But, as always, why has this come round to you again?

because I was asked this question -

your contract may have been. What about the working practises?

[webberg]

the contract review includes extensive questions about working practises in conjunction with the contract. But just to recap

I work exclusively from home. Not very relevant and a minor issue. Location is not indicative of any SD&C or lack thereof. Most of my time work at home but are employees.
No one supervises me in person, clearly. Again, a simplistic answer. Presumably somebody is looking at quality control and if your work falls short of that (or exceeds it) a conversation is had?
No one directs what I do, or how I do it, it is a reactive role, i.e. if there is an issue within my responsibilities, I am required to fix it.
There are no UK based permies employed doing the same role. So what? There is no comparison or benchmark test involved in IR35.
I attend at hours solely at my choosing but generally during office hours, there is a 24 hour SLA. The SLA will help if it is part of a payment mechanism based on milestones.
MyCo has professional indemnity insurance. No that weighty a point.
MyCo has employer and public indemnity insurance. see above.
and finally, I have a contractual right of substitution. Fine, but given that you claim to have specialist legacy skills is it really the case that a substitute would be found who is suitable and acceptable to the end client. If the right exists on paper but is not a practical possibility, it's weight is diminished.

I can't see HMRC being able to successfully challenge those in the FTT.

oh, and I have tax investigation insurance provided by Markel Tax.

Given that IR35 status is hugely complex and even "experts" disagree, your confidence, if based on the above, is higher than I would assign.

[WTFH]

...I work exclusively from home...
...I attend at hours solely at my choosing but generally during office hours, there is a 24 hour SLA...

So, do you work exclusively from home or do you attend the client site occasionally?

No one directs what I do, ... it is a reactive role, i.e. if there is an issue within my responsibilities, I am required to fix it.

You are required to fix something. Your responsibility is to fix it when you are required to do so.
How do you become aware that it needs fixing? Does someone direct you to the problem, which you then react to?

and finally, I have a contractual right of substitution.

But in 14 years, you’ve never used that.

oh, and I have tax investigation insurance provided by Markel Tax.

But not IR35 insurance even though you have been effectively permanently employed by the same company doing the same job for 14 years.

[northernladuk]

you know full well that length of contract has little or no bearing on employment status.

Using the technicalities of the rules you'd be right. In reality length of time brings with it apathy and part and parcel comes in to play. You've got to have dotted every single i and t for that entire period. Slight lapses will occur and also the clients view on you will change which you can do nothing about.
IMO the fact you've been doing a BAU role longer than most permies should be a factor and I believe a bit of common sense would back that up. 14 years is extraordinary and could easily test any existing thoughts on time as a factor.
Remember, one of the only cases HMRC have won (or split as it was) had time as a major factor. JLJ lost his case on the fact he'd been there a long time and slipped in to bad ways. If he hadn't been there as long he wouldn't have lost. That, to me, says that time IS a factor.

Just quoting the rules say time doesn't have a bearing, particularly with that length, is a very naive view.

Remember, QDOS have a clause that says they won't cover a role they can't win (or something along those lines. Will QDOS really want to be taking on a case with that length of time that has never been tested bearing in mind the costs they'll rack up if you lose?
Out of interest, what level is your insurance at? If you lose what will they cover? I really don't think the basic 50k is going to cover your situation so I wouldn't be sitting quite so comfortably as you appear to be doing so.

It's one of the questions asked by the insurers who believe that having such insurance is a pointer to self employment. Do keep up.

It might be but it's pretty irrelevant as evidence goes.

because I was asked this question -

your contract may have been. What about the working practises?

Yes, because you butted into a question about public sector with

I work on BAU support and my contract has been professionally assessed by Markel Tax as not subject to IR35

Which is totally irrelevant as you aren't in the PS.

[JohntheBike]

[QUOTE=northernladuk;2687713]Using the technicalities of the rules you'd be right. In reality length of time brings with it apathy and part and parcel comes in to play. You've got to have dotted every single i and t for that entire period. Slight lapses will occur and also the clients view on you will change which you can do nothing about.
IMO the fact you've been doing a BAU role longer than most permies should be a factor and I believe a bit of common sense would back that up. 14 years is extraordinary and could easily test any existing thoughts on time as a factor.
Remember, one of the only cases HMRC have won (or split as it was) had time as a major factor. JLJ lost his case on the fact he'd been there a long time and slipped in to bad ways. If he hadn't been there as long he wouldn't have lost. That, to me, says that time IS a factor.

Just quoting the rules say time doesn't have a bearing, particularly with that length, is a very naive view.

Remember, QDOS have a clause that says they won't cover a role they can't win (or something along those lines. Will QDOS really want to be taking on a case with that length of time that has never been tested bearing in mind the costs they'll rack up if you lose?
Out of interest, what level is your insurance at? If you lose what will they cover? I really don't think the basic 50k is going to cover your situation so I wouldn't be sitting quite so comfortably as you appear to be doing so.

It might be but it's pretty irrelevant as evidence goes.



Yes, because you butted into a question about public sector with

Just quoting the rules say time doesn't have a bearing, particularly with that length, is a very naive view.

what you seem to be doing is homing in on weak parts of engagements, not only mine. However, what you seem to forget is that the overall picture is taken into account, and intention of the parties, however weak is one of those factors. So you can't cherry pick those negative aspects of a contract, which you seem to delight in doing, and assume it would fail a challenge by HMRC.

Remember, QDOS have a clause that says they won't cover a role they can't win (or something along those lines. Will QDOS really want to be taking on a case with that length of time that has never been tested bearing in mind the costs they'll rack up if you lose?

I'm not insured through QDOS. I've already discussed my situation in great depth with Markel tax and they have indicated that my situation does not invalidate any of the provisions of the insurance.

Which is totally irrelevant as you aren't in the PS

the intimation was that a BAU support role was automatically subject to IR35, which is incorrect and this is true for the public sector as well as the private sector.

[BlueSharp]

Sigh.