*UPDATE: From April 2021 the rules for engaging individuals through personal service companies are changing. The responsibility for determining whether the off-payroll working rules (sometimes known as IR35) apply will move to the organisation receiving an individual’s services.* 

A more recent article by Susan on IR35, in particular the plans to extend it to the private sector, can be found here. An even more recent article by her colleague Caroline Harwood can be read here.

HMRC has opened the new Employment Status service for checking if you, or a worker on a specific engagement, should be classed as employed or self-employed for tax purposes. This service will give you the view of HM Revenue and Customs (HMRC) on whether:

• the intermediaries legislation applies to an engagement
• a worker should pay tax through PAYE for an engagement

HMRC will stand by the result given unless a compliance check finds the information provided isn’t accurate.

As well as the detailed technical note on off-payroll working published by the Government in December, HMRC has also released a series of helpful guidance pages on different aspects of the reform to off-payroll working in the public sector:

• Reform of intermediaries legislation (IR35)
• IR35: What to do if it applies
• Reform for fee-payers (public authorities, agencies, other third parties)
• Using a Personal Service Company – guidance for public authorities
• Using a Personal Service Company – guidance for workers

As announced in the 2016 Budget, and reaffirmed in the Autumn Statement, from 6 April 2017 public sector employers (or an agency or third party that pays the worker’s intermediary for the public sector body) will be responsible for deciding if the intermediaries legislation applies to a worker.

As part of IR35 this means they will now have responsibility for paying the relevant tax and National Insurance Contributions (NICs) via payroll. Previously, the onus for IR35 was on the individual worker, usually through a PSC or another intermediary.

The Government has brought forward the final legislation as part of Finance Bill 2017, along with matching NICs legislation, on which a consultation closed on 17 February 2017.

The fact is, however, that ‘Public sector’ has a wider definition than most might think and includes many charities.

Who does it impact?

The consultation document proposed that it would apply to organisations that are Public Authorities for the purposes of the Freedom of Information (FOI) Act 2000 and Freedom of Information Act (Scotland) 2002, such as:

• local government, NHS, schools and further and higher education institutions, police
• other public bodies (listed in the FOI for example The British Museum, BBC, Channel 4, The Tate Gallery, The Victoria and Albert Museum, The Arts Council of England, The General Medical Council, The Historic Royal Palaces Trust
• publicly owned companies (wholly owned by the Crown and/or the wider public sector such as Transport for London)

The document also asked if private companies carrying out public functions for the state should be included in this definition.

When will the changes happen?

The reform applies to payments made on or after 6 April 2017, including payments made for contracts entered into before that date. Where work is completed before 6 April 2017 but the payment is made on or after 6 April 2017, the rules will still apply.

Who is an intermediary?

An intermediary is most commonly known as an individual’s own company or a partnership they work through. For further clarification on what an intermediary is in this context, see Chapter 8 Part 2 Income Tax (Earning and Pensions) Act 2003.

How will we know if we need to deduct tax/NICs from the PSC?

Most organisations should already have a process in place for assessing if individuals can be paid off payroll by applying the employed versus self- employed test.

To enable engagers to quickly determine whether the new rules need to be considered, the Government has introduced a new gateway process. This is intended to be a simple mechanism which will quickly eliminate business to business relationships which are not within the scope of the rules.

NB. Initially, the documents issued by HMRC contained a 20% material test as step one: this was consulted on but has not formed part of the proposals going forward. However, the provision of materials is an important test in the new Employment Status Service online tool.

The key test is, “do the terms of a ‘disguised employment’ apply?” This refers to when an individual is deemed an employee of the limited company or LLP. If so it is likely that these new rules will apply

HMRC has provided simplified guidance, including the Employment Status Service tool to help engagers decide if a contract is for employment or self-employment. Answering the questions in the guidance and using the tools will give the engager HMRC’s view of the correct tax treatment.

How will tax and NICs be accounted for?

This is where it starts to get more complicated. The suggestion is that to work out the correct amount of tax and NICs, the engager will need to calculate an amount of deemed employment income (and earnings for NICs). This is the amount of the payment made to the intermediary, less any VAT charged.

The new measure will require the public sector organisation, or the agency engaging the worker on their behalf, to obtain the necessary personal, company and tax information needed to operate Real Time Information (RTI) from the worker’s PSC. The balance is then to be included for RTI purposes and returned to HMRC in the normal way. The engager should operate all expenses and other allowable deductions and allowances as if this were under direct employment. Responsibility for paying employer NICs on the deemed employment income will also shift from the PSC to the relevant engager.

Transfer of liability

Where the public sector engager, agency or other third party applies the rules incorrectly due to the use of inappropriate or inaccurate information in assessing status, the Government has also consulted on where the liability for any unpaid PAYE and NICs will sit.

The options that were put forward included:

• joint and several liability on the engager and the PSC
• the engager alone
• where the worker fraudulently provides incorrect information, the liability would sit with the worker and/or their PSC

What are the key responsibilities?

The key responsibilities of the public sector organisation are split as follows:

• determine whether off-payroll working rules should apply initially and when there are contractual changes, as the party engaging the worker for a specific task or role
• where using an agency or other third party to provide labour, notifying them whether off-payroll working rules should apply to the contract they have with the worker
• where it does not reply to the written request from an agency or other third party as to whether the off-payroll rules apply within 31 days, becoming responsible for accounting for PAYE as if it were a fee-payer

What should organisations do now?

As this is now being implemented, organisations need to:

• review their processes for determining if individuals are employed v self employed
• identify those who currently work through intermediaries
• review the procurement processes in order to consider the impact
• review their engagement processes not just through procurement but also where budget holders have authority to engage directly
• keep an eye out for future documents on the guidance pages
• have discussions with payroll and any agencies on how this will be operated
• assess the costs of implementing the proposed changes
• consider seeking professional advice

Susan Ball is Partner and Head of Employers Advisory at Crowe Clark Whitehill