If a client will change their mind mid-way.

[Northernlass]

No, that really depends. Fixed price and fully contracted out are not the same things. Business A can contract Business B to deliver a website without any involvement of staff from Business A beyond the initial spec and Business B can decide to hire contractors on T&M to deliver it (or fixed price, as they see fit).

Thanks James, I can see this is not straight forward...I'll see how the discussions go on Monday and let you all know how it went.

[eek]

In other words:

scenario 1: A contracts B to supply people to deliver a website for A. The people (contractors with PSCs) work diligently with staff from A to deliver the website according to the instructions of A. The company responsible for the SDS is A.

scenario 2: A contracts B to deliver a website. B gets the specs from A and then decides how to deliver the website. B decides to hire contractors on T&M to deliver the website. The contractors work under the instruction of staff from B and have no interaction with staff from A. The company responsible for the SDS is B.

And the issue here is that most of our work does NOT fit exactly into either of those scenarios - so the question is on what side of the barrier does the project fall under.

[jamesbrown]

Yup, very tricky and one (among several) flaws w/ the legislation. It's hard to know whether a supply is fully contracted out between the most extreme situations that are presented by way of illustration. The problem is that, if you're not quite close to one of the extremes, then you may end up with an SDS from the wrong company in the supply chain. In principle, that shouldn't matter (because the supply chain is responsible and liable), but in practice it does matter if the different companies take a very different view and the contractor has little leverage in affecting a determination or a change in determination.

[Northernlass]

Yup, very tricky and one (among several) flaws w/ the legislation. It's hard to know whether a supply is fully contracted out between the most extreme situations that are presented by way of illustration. The problem is that, if you're not quite close to one of the extremes, then you may end up with an SDS from the wrong company in the supply chain. In principle, that shouldn't matter (because the supply chain is responsible and liable), but in practice it does matter if the different companies take a very different view and the contractor has little leverage in affecting a determination or a change in determination.

James and eek, referring to James scenario 1 & 2, I am contracted to B on a B2B contract, so in my case B is hiring in a contractor on a T&M basis and I will be interacting with staff/suppliers from A but with no direction, I will be directing the project. So would it be the consultancy that provides the SDS in this case?

[jamesbrown]

James and eek, referring to James scenario 1 & 2, I am contracted to B on a B2B contract, so in my case B is hiring in a contractor on a T&M basis and I will be interacting with staff/suppliers from A but with no direction, I will be directing the project. So would it be the consultancy that provides the SDS in this case?

The issue is that you need to separate out the factors that make you inside/outside IR35 from the factors that make the supply fully outsourced or not. Your having no D&C imposed is a pointer towards the contract being outside of IR35. Your interacting with staff from A is a pointer to the contract between A and B not being a fully outsourced supply of services, rather a supply of people. You may well be outside of IR35, but it's sounding less like an outsourced supply. Again, though, there is no one here that can definitively answer this for you and you will need the supply chain to answer it.

[jamesbrown]

I would be trying to determine whether all parties in the supply chain have the same opinion about your IR35 status (but some of them may be unwilling to answer because they don't believe it's their responsibility) and then ensuring that you have an SDS (from whomever) that backs this up. I would also be looking carefully at the contractual terms (in your contract, not the upper contract, which you cannot see).

[eek]

James and eek, referring to James scenario 1 & 2, I am contracted to B on a B2B contract, so in my case B is hiring in a contractor on a T&M basis and I will be interacting with staff/suppliers from A but with no direction, I will be directing the project. So would it be the consultancy that provides the SDS in this case?

It is the end client (A) as you are interacting with them. Were the consultancy B providing project management support there are circumstances where B would be the people making the determination here but based on everything you've said so far it's up to the end client (so A) to do so.

And yes this stuff is way more complex than it needs to be as no one has produced a simple flowchart on how to determine things as it gets very complex very quickly.

[Northernlass]

Yup, very tricky and one (among several) flaws w/ the legislation. It's hard to know whether a supply is fully contracted out between the most extreme situations that are presented by way of illustration. The problem is that, if you're not quite close to one of the extremes, then you may end up with an SDS from the wrong company in the supply chain. In principle, that shouldn't matter (because the supply chain is responsible and liable), but in practice it does matter if the different companies take a very different view and the contractor has little leverage in affecting a determination or a change in determination.

The issue is that you need to separate out the factors that make you inside/outside IR35 from the factors that make the supply fully outsourced or not. Your having no D&C imposed is a pointer towards the contract being outside of IR35. Your interacting with staff from A is a pointer to the contract between A and B not being a fully outsourced supply of services, rather a supply of people. You may well be outside of IR35, but it's sounding less like an outsourced supply. Again, though, there is no one here that can definitively answer this for you and you will need the supply chain to answer it.

I see, there lies the problem as I wonder if I will actually gain the determination from either the conultancy of the end client.
Do you use IPSE at all? I wonder if I should sign up with them and see if they can provide some advice in this case. Thanks.

[eek]

I see, there lies the problem as I wonder if I will actually gain the determination from either the conultancy of the end client.
Do you use IPSE at all? I wonder if I should sign up with them and see if they can provide some advice in this case. Thanks.

I doubt IPSE can help - we've seen little evidence of them round here for years and their chairman used to be a regular poster until he tried to run me out of this site.

[Northernlass]

Yup, very tricky and one (among several) flaws w/ the legislation. It's hard to know whether a supply is fully contracted out between the most extreme situations that are presented by way of illustration. The problem is that, if you're not quite close to one of the extremes, then you may end up with an SDS from the wrong company in the supply chain. In principle, that shouldn't matter (because the supply chain is responsible and liable), but in practice it does matter if the different companies take a very different view and the contractor has little leverage in affecting a determination or a change in determination.

I doubt IPSE can help - we've seen little evidence of them round here for years and their chairman used to be a regular poster until he tried to run me out of this site.

ok thats a no go then I may try QDOS or IR35 shield. I'll let you know how I get on. Thanks.