Agency withholding invoices

[Protagoras]

Why doesn't the need for an SDS go away when the client is simply saying "We don't allow the use of Limited Company - you can only work here via PAYE (i.e. via a FCSA listed umbrella)."

The entire point of the approach is to explicitly show that the contract is not subject to IR35 - as the only option is PAYE.

It works the other way round too.

When a worker refuses to engage under the Ch.10 rules, there is no need for a SDS and the engagement is operated under Agent or Umbrella PAYE.

[andymalory]

Why doesn't the need for an SDS go away when the client is simply saying "We don't allow the use of Limited Company - you can only work here via PAYE (i.e. via a FCSA listed umbrella)."

The entire point of the approach is to explicitly show that the contract is not subject to IR35, the only option is PAYE hence no SDS is required because the process has nothing to do with IR35.

An SDS is a mandatory document, for determinations made as inside and outside IR35. If the client says we only allow umbrella routes, or PAYE through an agency, that doesn't remove the requirement on them to take 'reasonable care' to come to an inside IR35 assessment.

Now its an entirely different issue that most organisations, public and private, are not doing this.

[Protagoras]

If the client says we only allow umbrella routes, or PAYE through an agency, that doesn't remove the requirement on them to take 'reasonable care' to come to an inside IR35 assessment.

Where the client or worker refuses to engage with the off-payroll rules, PAYE is operated.

This does not make the engagement 'inside' IR35. Working practices etc could well be such that, if assessed, the engagement would be 'outside'.
The off-payroll rules become inapplicable and no assessment is made.

Umbrella != 'inside'

[andymalory]

I have only ever seen umbrella company or PAYE through an agency when the role has already been flagged up as inside IR35.

[northernladuk]

I have only ever seen umbrella company or PAYE through an agency when the role has already been flagged up as inside IR35.

A vast majority of finance co's have gone no LTD therefore no inside. It's highly possible a lazy agent hasn't bothered to differentiate the difference between no PSC's and inside IR35 in the advert. Both are the same to the end user, but the no PSC's does not need an SDS because the roles isn't offered to PSCs.