Reply to: IR35 contract advice please

[GhostofTarbera]

Thank you all for coming back to me on this thread, all the advice was really appreciated. In the end both the end client and the supplier (recruitment agency) agreed the role was inside IR35 and I left the contract.

The recruitment agency said they had another role that I was well suited for which I interviewed last Wednesday, and I was offered the role. It is another outside IR35 role and this time I am going to be contracted to a consultancy who are working on a business case/proposal for a central government department.

I did not receive the contract for the new role until late on Friday and have just managed to fully review it today and again there are no deliverables or milestones in the Statement of Work. I am due to start tomorrow with meetings booked with the government stakeholders from 10am and do not feel comfortable starting without clear deliverables for obvious reasons. I will not be able to speak to my contact at the agency until the morning and disappointed to be in this situation again with the same agency.

The contract is only for 7 weeks initially so time is of the essence for the consultancy to turn around this work and win this work, so I would feel bad not starting tomorrow but I am telling myself I run a business also.

Would you all start the work without the contract, ask for the deliverables to be added to the contract and then sign? Am I overthinking all of this?

I would start tomorrow as there has been no new ir35 investigations for a few years - more chance being hit by lightning than getting investigated


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[SueEllen]

Does the client actually know what the government client wants?

If they need to win the work first then it may not be clear what the milestones and/or deliverables are.

I have had to write my own milestones then get them agreed to and signed off with a client because they were in a similar situation.

[ladymuck]

You do have a contract, it just doesn't contain what you're looking for. If you start it without signing it, the assumption will be that you've accepted it.

For the most part, agencies don't have a clue about your specific deliverables so I wouldn't expect an agency contract to go to that level of detail. I've contracted twice direct with boutique consultancies and they've issued more detailed information as they're much closer to the coal face, so to speak. Ask the consultancy to issue a statement of your deliverables / milestones and keep that with the contract if you're really worried.

TL;DR - you're overthinking it.

[FunkyPigeon]

Thank you all for coming back to me on this thread, all the advice was really appreciated. In the end both the end client and the supplier (recruitment agency) agreed the role was inside IR35 and I left the contract.

The recruitment agency said they had another role that I was well suited for which I interviewed last Wednesday, and I was offered the role. It is another outside IR35 role and this time I am going to be contracted to a consultancy who are working on a business case/proposal for a central government department.

I did not receive the contract for the new role until late on Friday and have just managed to fully review it today and again there are no deliverables or milestones in the Statement of Work. I am due to start tomorrow with meetings booked with the government stakeholders from 10am and do not feel comfortable starting without clear deliverables for obvious reasons. I will not be able to speak to my contact at the agency until the morning and disappointed to be in this situation again with the same agency.

The contract is only for 7 weeks initially so time is of the essence for the consultancy to turn around this work and win this work, so I would feel bad not starting tomorrow but I am telling myself I run a business also.

Would you all start the work without the contract, ask for the deliverables to be added to the contract and then sign? Am I overthinking all of this?

[Lance]

Public sectors normally have different frameworks to come in under which usually defines the roles status from the off. If he's in under a managed service agreement but they are using that get bodies on seats then the slide back to the old days has started. Only HMRC/treasury win if PS, and indeed private clients, start this trick all over again.

FTFY

[northernladuk]

Regardless, it still depends if you are providing a discrete service or working as a manpower replacement or addition. The consultancy is off the hook only if they are providing a complete service solution such as a new application or website. If they are augmenting the client's workforce then the PS rules will apply.

Public sectors normally have different frameworks to come in under which usually defines the roles status from the off. If he's in under a managed service agreement but they are using that get bodies on seats then the slide back to the old days has started. No one wins if PS, and indeed private clients, start this trick all over again.

[malvolio]

Regardless, it still depends if you are providing a discrete service or working as a manpower replacement or addition. The consultancy is off the hook only if they are providing a complete service solution such as a new application or website. If they are augmenting the client's workforce then the PS rules will apply.

[Lance]

Thank you for all your responses.

The supplier came back to me today to say they work as an intermediary so the end client, being the local authority in this scenario are in charge of making the IR35 determination. The supplier attached the CEST determination that they received for my piece of work which was completed by the local authority.

Still strange not to have any agreed deliverables for the work but I guess I keep invoicing and get my head down.

Yep.

At some point someone in procurement will realise they've made a balls up. Until then keep invoicing.

[FunkyPigeon]

Thank you for all your responses.

The supplier came back to me today to say they work as an intermediary so the end client, being the local authority in this scenario are in charge of making the IR35 determination. The supplier attached the CEST determination that they received for my piece of work which was completed by the local authority.

Still strange not to have any agreed deliverables for the work but I guess I keep invoicing and get my head down.

[jamesbrown]

Seems likely that the supply chain is stretching the boundaries of credibility regarding: a) what constitutes a fully contracted out service (and, therefore, resting with you for determination, rather than the end client); and b) the working practices being outside IR35 (sounds like window dressing around a standard T&M contract). That said, as others have indicated, April is only around the corner now.

[Fred Bloggs]

Sounds to me a lot like "smile sweetly and keep on invoicing".

[Lance]

It's been a long time since I looked at this and don't remember the outcome but isn't their some nuance to this when the end client of the consultancy is public sector. Didn't that mean in some cases the contractors to the consultancy were already under the public sector rules? There was a lot of confusion back in the day.

It can be confusing hence why it's important to ensure that it is the end client who makes the determination. Getting a copy isn't about having a copy it's about confirming that the PS client have made the determination so you're in the clear.

It matters not come April as it's the same for all (small businesses use too few contractors for us to be really concerned about here IMO).

[northernladuk]

are the public sector client responsible for determining your IR35 status?
If they are, then ask for a copy.
Then rest easy as it's not your problem.

Since April 2017 (or was it 2018) they are responsible for the determination and any financial risks with underpayment of tax.
If the consultancy are your actual client, then it's their problem after April 2021, but yours now. Given that means your maximum exposure is 3 months, the rest easy (but keep some spare cash in case you are found wanting).

It's been a long time since I looked at this and don't remember the outcome but isn't their some nuance to this when the end client of the consultancy is public sector. Didn't that mean in some cases the contractors to the consultancy were already under the public sector rules? There was a lot of confusion back in the day.

OP do you know what framework they are engaging the client under? Full service Gcloud thing or a body shopping one?

I did think the public sector on the whole had gotten on top of this one. My public sector client seems pretty slick at it now with a mix of outside managed service contractors and inside temps on board.

[FunkyPigeon]

Thank you Lance.

I have spoken to an advisor this evening and you are correct at the moment it is my responsibility to make the determination and from April it becomes the consultancy's responsibility.

I have reviewed the contract again and it states:

The Consultancy acknowledges that Off-Payroll status is subject to change during the term of the assignment. The Consultancy agrees and accepts that the Supplier is entitled to vary the Agreement to comply with Off-Payroll and may be required to terminate with immediate effect pursuant to clause 9.

The advisor said that the consultancy should make their determination status now to avoid confusion for April. If I thought the role was inside IR35 I would not have taken the role on, it wasn't until I started the work that the alarms bells started to ring.

I have spoken with an old colleague who was by co-incidence contracting doing the same role as me now up until 2019 and they were inside IR35 for this role. I am unsure why it has been sold to me as outside IR35.

At least I have learnt more about the legislation and it makes me stronger for the future.

[Lance]

are the public sector client responsible for determining your IR35 status?
If they are, then ask for a copy.
Then rest easy as it's not your problem.

Since April 2017 (or was it 2018) they are responsible for the determination and any financial risks with underpayment of tax.
If the consultancy are your actual client, then it's their problem after April 2021, but yours now. Given that means your maximum exposure is 3 months, the rest easy (but keep some spare cash in case you are found wanting).