Are blanket determinations really unlawful?

[eatenrifles]

However the problem is that you won't get anyone making blanket determinations, they will just ban PSC's

Tell that to my client. They blanket assessed everyone as inside. The agencies will still pay net to Ltd Co if you wish, so PSCs are still allowed.

[ladymuck]

Nope.


Illegal means that it is forbidden by a law that has been passed.
Unlawful means that it is not authorised by law because no such law has been passed.

IANAL

That's why I started the sentence with "to me", knowing full well that's not the actual way the term should be interpreted.

But thanks for mansplaining and really helping the discussion.

[SimonMac]

Role-based blanket IR35 assessments are unlawful and highly risky

However the problem is that you won't get anyone making blanket determinations, they will just ban PSC's

[Lance]

To me, unlawful is akin to illegal. Wherein you could sue a company for making a blanket determination by assessing all BAs, for example, as being inside. However, if the company could prove that the role of a BA doesn't materially change and it's just the project that changes, then surely that's acceptable.

It's not great, but I would challenge that a well considered blanket determination is lawful, no matter what Chaplin says.

Nope.


Illegal means that it is forbidden by a law that has been passed.
Unlawful means that it is not authorised by law because no such law has been passed.

IANAL

[jamesbrown]

The draft legislation requires “reasonable care” in formulating an SDS. This is a legal concept and a blanket determination would likely fail unless all contractors at that ClientCo were clones. Absent reasonable care, the client becomes the Fee Payer.

[wattaj]

That to me is the easiest way around the ambiguity in the documents HMRC have issued to date. It's then policy and not a determination. I suspect the legislation was written that way to encourage this behaviour.

Agreed. And I have been saying as much for years. One of my many disappointments with IPSE was that they disregarded this view almost entirely IMHO.

[ladymuck]

From what I read, there aren't that many ClientCos that make actual blanket determination. Most of the big names are simply stating they are not going to engage with ltd. contractors - only Umbrella, which is in their right.

That to me is the easiest way around the ambiguity in the documents HMRC have issued to date. It's then policy and not a determination. I suspect the legislation was written that way to encourage this behaviour.

[wattaj]

To me, unlawful is akin to illegal. Wherein you could sue a company for making a blanket determination by assessing all BAs, for example, as being inside. However, if the company could prove that the role of a BA doesn't materially change and it's just the project that changes, then surely that's acceptable.

It's not great, but I would challenge that a well considered blanket determination is lawful, no matter what Chaplin says.

Agreed; as would I. It all comes down to the nuance of the case in play... but I'll be playing up the "illegality" for the time being.

[ladymuck]

To me, unlawful is akin to illegal. Wherein you could sue a company for making a blanket determination by assessing all BAs, for example, as being inside. However, if the company could prove that the role of a BA doesn't materially change and it's just the project that changes, then surely that's acceptable.

It's not great, but I would challenge that a well considered blanket determination is lawful, no matter what Chaplin says.

[wattaj]

Role-based blanket IR35 assessments are unlawful and highly risky

Thanks. I'd already referenced that article in my other discussion. Appreciated.

[sal]

From what I read, there aren't that many ClientCos that make actual blanket determination. Most of the big names are simply stating they are not going to engage with ltd. contractors - only Umbrella, which is in their right.

[Peoplesoft bloke]

Role-based blanket IR35 assessments are unlawful and highly risky

[wattaj]

I've asserted in another place that blanket determinations are unlawful, but I cannot find the specific reference to support that assertion. Can anyone point me in the right direction for that supporting evidence?
Thanks.