Reply to: IPSE/QDos renewal, IR35 insurance seems sketchy

[JohntheBike]

Would you be able to outline any cases in which the following clause would be true:

• You have autonomy over your method of work and are not subject to the same level of supervision or control as your clients’ employees

yet the policy holder would still be considered inside IR35 and liable to pay penalties?

"yet the policy holder would still be considered inside IR35 and liable to pay penalties?"

HMRC would always consider you caught by IR35, irrespective of the contract. They like to shift between contractual provisions and actual arrangements at will, in order to prove their case. Only a court can decide this as the overall picture needs to be considered. Many times the courts have been at great pains to point out that deciding employment status isn't a box ticking exercise. Each factor has to be considered and given appropriate weight in any judgement.

[deeter]

There were similar questions raised in this thread.

As we alluded to back then, we are asking clients to confirm the facts as they understand them at the point of application. An IR35 enquiry can take upwards of 18 months and, naturally, the determining factors are never black and white.

Would you be able to outline any cases in which the following clause would be true:

• You have autonomy over your method of work and are not subject to the same level of supervision or control as your clients’ employees

yet the policy holder would still be considered inside IR35 and liable to pay penalties?

[JohntheBike]

The policy wording is here.

https://www.qdoscontractor.com/docum...9-12-06-01.pdf

Page 7 cover most of what happens if you find out stuff after you've taken out cover. If you've jeopardised your own position and not advised them to the point they think you have less than 51% chance of winning then you're in a pickle.

In answer to the RoS one though, never mention it. It's highly likely most clients wouldn't honour it but you can defend it as being available as per the contract. If you find out that your client won't honour it you need to tell QDOS as there is a possibility you've invalidated your own insurance.. although RoS isn't a major pillar anymore. That said, it's likely to be a indicator of much bigger issues so it will all be pretty messy.
Interesting thread on this situation here.
https://www.contractoruk.com/forums/...titutions.html

"but you can defend it as being available as per the contract"

I can confirm that in a round about way.

[Qdos Contractor]

I'd be really interested in hearing the official answer to this as I don't have TLC35 and these sort of clauses are the reason why as my much of my client base (large consultancies/systems integrators) tends to:
* Not honour the RoS in fact (despite it being contractually allowed under reasonable IR35 friendly terms).
* Internally put me on a 'team' with permies (I'm definitely a contractor there to design & execute 1 project, but in the organisation's official hierarchy I'm the all-but-the-same as their permie, even reporting to the same manager, theoretically doing the same 'job' - which I imagine HMRC will happily use to trip up the organisation's non-IR35 conversant managers in the event of any enquiry).

There were similar questions raised in this thread.

As we alluded to back then, we are asking clients to confirm the facts as they understand them at the point of application. An IR35 enquiry can take upwards of 18 months and, naturally, the determining factors are never black and white.

[northernladuk]

I'd be really interested in hearing the official answer to this as I don't have TLC35 and these sort of clauses are the reason why as my much of my client base (large consultancies/systems integrators) tends to:
* Not honour the RoS in fact (despite it being contractually allowed under reasonable IR35 friendly terms).
* Internally put me on a 'team' with permies (I'm definitely a contractor there to design & execute 1 project, but in the organisation's official hierarchy I'm the all-but-the-same as their permie, even reporting to the same manager, theoretically doing the same 'job' - which I imagine HMRC will happily use to trip up the organisation's non-IR35 conversant managers in the event of any enquiry).

The policy wording is here.

https://www.qdoscontractor.com/docum...9-12-06-01.pdf

Page 7 cover most of what happens if you find out stuff after you've taken out cover. If you've jeopardised your own position and not advised them to the point they think you have less than 51% chance of winning then you're in a pickle.

In answer to the RoS one though, never mention it. It's highly likely most clients wouldn't honour it but you can defend it as being available as per the contract. If you find out that your client won't honour it you need to tell QDOS as there is a possibility you've invalidated your own insurance.. although RoS isn't a major pillar anymore. That said, it's likely to be a indicator of much bigger issues so it will all be pretty messy.
Interesting thread on this situation here.
https://www.contractoruk.com/forums/...titutions.html

[man]

Hi, I was looking into QDOS's TLC35 (the more expensive package, which covers the cost of any penalties along with the cost of representation) and hit a quandary: in order to be covered by it you have to agree that
• You are able to exercise a Right of Substitution
• You have autonomy over your method of work and are not subject to the same level of supervision or control as your clients’ employees

Surely if these two points are true, then there's basically no risk of HMRC winning against you to begin with and imposing any penalties?
It seems like there's no real additional cover with this and you're better off just opting for the cheaper "representation only" package. Am I missing something?

I'd be really interested in hearing the official answer to this as I don't have TLC35 and these sort of clauses are the reason why as my much of my client base (large consultancies/systems integrators) tends to:
* Not honour the RoS in fact (despite it being contractually allowed under reasonable IR35 friendly terms).
* Internally put me on a 'team' with permies (I'm definitely a contractor there to design & execute 1 project, but in the organisation's official hierarchy I'm the all-but-the-same as their permie, even reporting to the same manager, theoretically doing the same 'job' - which I imagine HMRC will happily use to trip up the organisation's non-IR35 conversant managers in the event of any enquiry).

[pr1]

For the cost 1-2 days billing per annum, I think it's money well spent.

QDOS would agree Qdos Group Posts 51% Margin, Plus GBP7.1m Profits for 2017 – Insurance Edge

[JohntheBike]

Rule #1 of insurance is never trust anything that isn't written into a contract. Nothing personal. I can praise all the insurance companies I've worked with that I've never claimed from, but 100% of those I have have tried to shaft me over in various ways, often due to the small print. While it is easy to make those claims now, when faced with £50,000 worth of costs any insurance company will try to wriggle out of it, as I have seen so many times.

You get a feel for it when you argue with an insurance company that doesn't want to pay out for someone who "failed to notify them prior to seeking medical attention" after collapsing and being rushed to hospital abroad and having bills over 100,000 euros...

If it covers regardless of contract, why do the free contract reviews?

Rule #1 of insurance is never trust anything that isn't written into a contract

agreed. I have a manufacturer's extended warranty on my car and it drooped into restricted performance mode recently. I took it to the dealer who sold me the car, but when they contacted the manufacturer it seems the fault wasn't covered. The fault was in the exhaust gas recycling (EGR) valve sensor, which had failed. Now the EGR valve itself was covered, but not the sensor. The warranty booklet was a little confusing, as it listed what was covered at one point and then what was not covered at another. It seems there were two different levels of warranty and mine covered was what positively listed, not what was excluded. So the EGR valve sensor wasn't listed as being covered. However, what is more worrying is that when I read what was covered in detail, it seems the electronics of the auto box are not covered. I'm locked into the warranty now until the end of the year, but I'll be examining other offerings when I come to renew.

[malvolio]

I understand and agree; I just thought it was a little odd tipping it to 100%, though.


Yeah, they have a lesser package that already does this.

So does IPSE membership which, if you take advantage of the other benefits it carries, won't cost you anything.

[deeter]

There is an element to all insurance that cover is based according to the likelihood of paying out so restrictions are put in place to tip it in the favour of the insurer.

I understand and agree; I just thought it was a little odd tipping it to 100%, though.

That said, I would rather prove to an insurer I meet their criteria, and have them fight my corner when the dreaded brown envelope through the door, than rely on me arguing it in court against HMRC and having to find/fund my own legal counsel who know what they're talking about.

Yeah, they have a lesser package that already does this.

[ladymuck]

There is an element to all insurance that cover is based according to the likelihood of paying out so restrictions are put in place to tip it in the favour of the insurer.

That said, I would rather prove to an insurer I meet their criteria, and have them fight my corner when the dreaded brown envelope through the door, than rely on me arguing it in court against HMRC and having to find/fund my own legal counsel who know what they're talking about.

[northernladuk]

For the cost 1-2 days billing per annum, I think it's money well spent. I'm under no illusion that an IR35 investigation is a walk in the park, even if you are covered through QDOS or any other policy.

Totally this.

[ShandyDrinker]

Hi, I was looking into QDOS's TLC35 (the more expensive package, which covers the cost of any penalties along with the cost of representation) and hit a quandary: in order to be covered by it you have to agree that
• You are able to exercise a Right of Substitution
• You have autonomy over your method of work and are not subject to the same level of supervision or control as your clients’ employees

Surely if these two points are true, then there's basically no risk of HMRC winning against you to begin with and imposing any penalties?
It seems like there's no real additional cover with this and you're better off just opting for the cheaper "representation only" package. Am I missing something?

As someone who has held the insurance for nearly as long as I've been contracting and just renewed I think it really depends on your approach to risk. While you may well right, can you afford to pay any fines/penalties if the worst should ever happen?

For the cost 1-2 days billing per annum, I think it's money well spent. I'm under no illusion that an IR35 investigation is a walk in the park, even if you are covered through QDOS or any other policy.

I think we're going to see an onslaught of activity over the next couple of years, regardless of what the government are currently saying. However, we can only hope HMRC keep losing at tribunals and that someone will eventually question why so much money is being wasted on pursuing fruitless investigations.

[deeter]

Hi, I was looking into QDOS's TLC35 (the more expensive package, which covers the cost of any penalties along with the cost of representation) and hit a quandary: in order to be covered by it you have to agree that
• You are able to exercise a Right of Substitution
• You have autonomy over your method of work and are not subject to the same level of supervision or control as your clients’ employees

Surely if these two points are true, then there's basically no risk of HMRC winning against you to begin with and imposing any penalties?
It seems like there's no real additional cover with this and you're better off just opting for the cheaper "representation only" package. Am I missing something?

[squirrel99]

The TLC is based on your perception of the actual working practices. With issues like substitution you're never going to know the answer definitively, but we're just trying to build a broad overview.

Drop me a PM if you'd like to discuss substitution in more depth.

Just a quick update on our pm to other forum readers - Seb was really helpful and looks like I am fine after all