Child support tribunal & umbrella companies

[Johnk01]

Oops .... sorry meant to say they WILL NOT postpone if you are not there the finding will go against you

[Johnk01]

Have had family experience of this rubbish the one very important thing is you MUST attend if you don't everything is lost (I know you say you are but believe me they just chuck it out if you are not there in person) this is the voice of experience.
They will award against you in the hardest terms even if you are not ready they will postpone if you are not there.

[easy rider]

Thanks

I've already sent in a detailed written submission to the tribunal giving the background to IT industry and how freelance consulting works, together with what I believe to be a comprehensive rebuttal of that UTT decision.

I'll also certainly be attending the hearing in person.

[Lance]

Little - you forget that Mal has to make a comment on anything and everything for the sake of it even when its utterly unhelpful....

as I said, its worth going in with a short explanation as to how you work so that the tribunal can see what is actually going on rather than being told incorrect information based on invalid assumptions....

^^This^^

and make sure you turn up. As stated earlier the father in the case you linked didn't offer much in evidence of expenses or turning up to explain.

[malvolio]

Little - you forget that Mal has to make a comment on anything and everything for the sake of it even when its utterly unhelpful....

as I said, its worth going in with a short explanation as to how you work so that the tribunal can see what is actually going on rather than being told incorrect information based on invalid assumptions....

Ever hear the term Devils Advocate...? Ignoring all the possible counter arguments is not a good idea. Also how many companies do you know that detail their invoices on anew employee payslip?

Perhaps a few less ad hominems and more vision is needed

[eek]

As I see it, the problem arises because there is no legal definition of an umbrella company (at least in this context). I ran a search at legislation.gov.uk and umbrella company is only mentioned in relation to open-ended investment companies - not the same beast, methinks.

Without a definition in law, umbrella companies cannot be treated differently from any other employer.

The term umbrella company appears to be used very loosely - there is a 2006 UT tribunal decision, where the commissioner uses the term to refer to what we see as a LtdCo or PSC, not what we view as a brolly.

The 'Payslips' from my old brolly have 3 sections:

* top section - the real payslip with gross pay, tax, NI, net pay etc.
* mid section - employee expenses
* bottom section - what the brolly invoiced for, their fee & employment expenses deducted

Umbrella companies have to be transparent about their fees, but it doesn't alter the fact that the invoiced amount is never my income, just as it won't be if I were an IBM employee billed as BoS to a client.

The CSA send out an employer enquiry form which has a special "umbrella" section which has a gross pay box, followed by brolly fees box & employment costs box. An accounts assistant fills in the form putting the invoice value in the gross pay box and sends it back to CSA.

I understand how the CSA are leading the umbrella company and tribunals up the garden path with their form, but my point is, there is NO definition of an umbrella company in the law, let alone any special treatment. Therefore the CSA are acting illegally. I've put in a FOI to CSA to try to get some clarity on what legislation they think they are applying when they treat umbrella companies differently.

What, if any, are the faults in my logic?

Little - you forget that Mal has to make a comment on anything and everything for the sake of it even when its utterly unhelpful....

as I said, its worth going in with a short explanation as to how you work so that the tribunal can see what is actually going on rather than being told incorrect information based on invalid assumptions....

[easy rider]

As I see it, the problem arises because there is no legal definition of an umbrella company (at least in this context). I ran a search at legislation.gov.uk and umbrella company is only mentioned in relation to open-ended investment companies - not the same beast, methinks.

Without a definition in law, umbrella companies cannot be treated differently from any other employer.

The term umbrella company appears to be used very loosely - there is a 2006 UT tribunal decision, where the commissioner uses the term to refer to what we see as a LtdCo or PSC, not what we view as a brolly.

The 'Payslips' from my old brolly have 3 sections:

* top section - the real payslip with gross pay, tax, NI, net pay etc.
* mid section - employee expenses
* bottom section - what the brolly invoiced for, their fee & employment expenses deducted

Umbrella companies have to be transparent about their fees, but it doesn't alter the fact that the invoiced amount is never my income, just as it won't be if I were an IBM employee billed as BoS to a client.

The CSA send out an employer enquiry form which has a special "umbrella" section which has a gross pay box, followed by brolly fees box & employment costs box. An accounts assistant fills in the form putting the invoice value in the gross pay box and sends it back to CSA.

I understand how the CSA are leading the umbrella company and tribunals up the garden path with their form, but my point is, there is NO definition of an umbrella company in the law, let alone any special treatment. Therefore the CSA are acting illegally. I've put in a FOI to CSA to try to get some clarity on what legislation they think they are applying when they treat umbrella companies differently.

What, if any, are the faults in my logic?

[malvolio]

Surely its a matter of this is my contract not income goes to this company...

This is the ownership of the company - I'm not the owner.

These are my payslips.....

And if absolutely necessary draw a pie chart with your weekly income, and the employer NI and umbrella fees shown separately....

To which the counter argument is that the income of the Umbrella is totally derived from the individual efforts of each of its employees, and that their employees' income is also derived in proportion to their individual efforts. So apply de minimis and the individuals' income is easily discerned and can be evaluated in isolation.

[eek]

Surely its a matter of this is my contract not income goes to this company...

This is the ownership of the company - I'm not the owner.

These are my payslips.....

And if absolutely necessary draw a pie chart with your weekly income, and the employer NI and umbrella fees shown separately....

[SueEllen]

Commissioner's are now judges. This is the guy - Prof Nick Wikeley - Judge of the Upper Tribunal (Administrative Appeals Chamber) from 2008

Despite him being a law professor, etc., I believe he is still wrong in law. He is human and can make mistakes.

In a nutshell, my argument is:

1. An umbrella company has no special definition or treatment in the relevant legislation.
2. The contractor is an employee of the umbrella company
3. Everything then fits just as it would for any other employer/employee

There is no need for the "third way" that Wikeley is trying to find.

Do you have documentary evidence to support your arguements e.g. from the umbrella company you use plus any legal cases?

[easy rider]

oh.. and it wasn't a judge. It was a Child Support Commissioner so unlikely to be interested in anything other than the CSA laws.

Commissioner's are now judges. This is the guy - Prof Nick Wikeley - Judge of the Upper Tribunal (Administrative Appeals Chamber) from 2008

Despite him being a law professor, etc., I believe he is still wrong in law. He is human and can make mistakes.

In a nutshell, my argument is:

1. An umbrella company has no special definition or treatment in the relevant legislation.
2. The contractor is an employee of the umbrella company
3. Everything then fits just as it would for any other employer/employee

There is no need for the "third way" that Wikeley is trying to find.

[Lance]

oh.. and it wasn't a judge. It was a Child Support Commissioner so unlikely to be interested in anything other than the CSA laws.

[Lance]

I've got a tribunal hearing coming up soon.

CSA have pointed the Judge to this Upper Tribunal decision - linky

Seriously bad case law which treats the umbrella company fee and employers NI as the contractor's pay.

Judge clearly didn't have a clue what he was talking about - IR35 umbrella company is a contradiction in terms.

Anyone else have to defend against this?

Looks clear cut to me.
The employer's NI being 'not an expense' is the only one that seems questionable but it's a small part anyway.
The biggies were mileage - The father was a no show to court so they just ignored his argument (what an idiot)
and subsistence - which is treated differently for CSA cases as for income tax.
The subsistence not being broken down didn't help the father either.

I can see that it's probably not fair. But the question around legality seems fruitless. Especially as the link is a pure legal assessment of an earlier decision.

Make sure you turn up to court. And if you've got high expenses then expect to be shafted.

[easy rider]

I've got a tribunal hearing coming up soon.

CSA have pointed the Judge to this Upper Tribunal decision - linky

Seriously bad case law which treats the umbrella company fee and employers NI as the contractor's pay.

Judge clearly didn't have a clue what he was talking about - IR35 umbrella company is a contradiction in terms.

Anyone else have to defend against this?