End Client and Consultancy, who should be making the determinations?

[SimonMac]

If its

Me > MyCo > Agent > Consultancy > End Client

Who should be making the determination? I was under the impression it was End Client, the agent is saying they are waiting for the Consultancy to make the determination.

My contract mentions Consultancy but not End Contract directly, just their location (specific building name rather than just the town the end client is located).

[Patrick@Intouch]

If its

Me > MyCo > Agent > Consultancy > End Client

Who should be making the determination? I was under the impression it was End Client, the agent is saying they are waiting for the Consultancy to make the determination.

My contract mentions Consultancy but not End Contract directly, just their location (specific building name rather than just the town the end client is located).

Most likely to be the Consultancy in this case. Sounds like End client has engaged Consultancy to deliver a project/output/deliverable and Consultancy has to decide how to resource that.

[JohntheBike]

If its

Me > MyCo > Agent > Consultancy > End Client

Who should be making the determination? I was under the impression it was End Client, the agent is saying they are waiting for the Consultancy to make the determination.

My contract mentions Consultancy but not End Contract directly, just their location (specific building name rather than just the town the end client is located).

Who should be making the determination?

It should be the end client whatever the chain as far as I understand. However, it would seem that it's not that straightforward legally. My structure is me>MyCo>consultancy>end client. The consultancy and end client have engaged QDOS to assess the contracts, but there is some issue as to whether or not some of those who work for the consultancy providing services to the end client should be assessed by the consultancy or the end client. The delay in any announcement is telling me that there must be some legal issue there which is being debated between the consultancy and the end client. What is encouraging is that so far neither the consultancy nor the end client have adopted the approach that the banks et al have taken.

[jamesbrown]

Depends whether it's an outsourced service being delivered by the consultancy or the consultancy is acting as a bodyshop. If the former, the SDS will be produced by the consultancy, otherwise the end client.

There's an ESM on what constitutes an outsourced service, but it's currently yanked:

ESM10010 - Employment Status Manual - HMRC internal manual - GOV.UK

[northernladuk]

It depends on what the delivery method is through to end client. If they are getting a fully managed work package the it's not them. If they want people in site to work with them to achieve their requirements its likely to be then.

Who in that chain do you do the work for? For the consultancy to package and sell to the client in which cause I'd say consultancy.. . or will the agency be selling your services as a body on site in which case the client could treat you like employee so it would be the client.

[JohntheBike]

It depends on what the delivery method is through to end client. If they are getting a fully managed work package the it's not them. If they want people in site to work with them to achieve their requirements its likely to be then.

Who in that chain do you do the work for? For the consultancy to package and sell to the client in which cause I'd say consultancy.. . or will the agency be selling your services as a body on site in which case the client could treat you like employee so it would be the client.

If they are getting a fully managed work package the it's not them.

perhaps this is the subtlety that's causing the issue with my consultancy. Could it be that the "fully managed work package" is intimating that IR35 doesn't apply at all? Remember that IR35 is related to the services provided to the end client.

[northernladuk]

perhaps this is the subtlety that's causing the issue with my consultancy. Could it be that the "fully managed work package" is intimating that IR35 doesn't apply at all? Remember that IR35 is related to the services provided to the end client.

No. It may still apply if you are a bum on seat at the consultancy working on a work package to sell the client. In this case the client is a consumer of services of your consultancy, not of yours.. The engagement with the consultancy to deliver bum seat day by day work from you is an ir35 problem.

If you are engaged in a way you deliver a workpackage to the consultancy as company work could indicate ir35 doesn't apply.

That make sense?

When you say services to the end client I think that might mean personal services if that makes it any clearer.

[simes]

It should be the end client whatever the chain as far as I understand. However, it would seem that it's not that straightforward legally.

I believe so too.

At least, this is the structure the banks (at present) are taking.

No PSCs, no matter how many intermediaries or consultancies sitting in the middle... And, I can imagine the way things have been going, this will be adopted by wider swathes. Safe than sorry being the thrust etc.

[jamesbrown]

I believe so too.

At least, this is the structure the banks (at present) are taking.

No PSCs, no matter how many intermediaries or consultancies sitting in the middle... And, I can imagine the way things have been going, this will be adopted by wider swathes. Safe than sorry being the thrust etc.

I think the confusion is this. The end client always issues the SDS.

But who is the end client?

Ordinarily, this is obvious. But the question over what constitutes an outsourced service makes it less obvious in some cases.

[simes]

I think the confusion is this. The end client always issues the SDS.

But who is the end client?

Ordinarily, this is obvious. But the question over what constitutes an outsourced service makes it less obvious in some cases.

Yup, completely agree.

The HMRC have made a rod for their own back in this regard, especially since by the sounds of it, there will be a number of small niche oriented consultancies that will be going under.

But in light of the banks' action in aiming for zero risk, I fear this will be the citizens' taking of the rule as opposed to awaiting any response from HMRC to say,

'Ah, erm, well, in eh this case, we might make an exception to the previously excepted rule and offer something that we won't later change our minds about and then 25 years down the line, Investigate.'