*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 Crowe UK on steps charities need to take to prepare for off-payroll working from April 2021 can be read here.

HMRC’s long-awaited consultation on IR35 in the private sector was finally published on 18 May 2018. This was no real surprise to those following the development of this issue carefully, given:

• We had public sector changes introduced in April 2017 with many commenting at the time, that these were likely to be extended to the private sector.
• Then 2017 Autumn Budget announced that a consultation would be introduced in 2018.
• The Chancellor of the Exchequer explicitly said in his Spring Statement: “In the coming months the government will publish ‘Off-payroll working —a consultation on how to tackle non-compliance in the private sector, drawing on the experience of the public sector reform.’”

The consultation is something to which all UK boards, HR and finance professionals need to pay attention, as there are likely to be huge implications for private sector organisations. HMRC has made it clear that in their view there is evidence that the IR35 legislation “is not working effectively, and non-compliance is widespread”. It estimated that only 10% of Personal Service Company (‘PSCs’) that should apply the legislation actually do so.

It is estimated that tax loss from non-compliance is likely to grow from £700 million to £1.2 billion in five years, which represents a 71% increase. The yield in the public sector is estimated to have increased to £410 million from 58,000 ‘engagements’, which is equivalent to just over £7,000 per occasion. If the same figures are used for the private sector, this would mean that almost 100,000 disguised employments exist to meet the £700 million yield and almost 170,000 to meet the increased yield of £1.2 billion in five years.

It is clear then that it is a case of when, rather than if these new regulations are introduced, with April 2019 looking to be the most likely date. While this is not certain, the timing of this consultation is important, considering it is due to run from 18 May 2018 until 10 August 2018.There is plenty of time for the UK Government to be able to respond to this consultation at the 2018 Autumn Budget in November, with a new Finance Bill and an April 2019 implementation date.

Last April, the rules were changed for off-payroll working in the public sector. The changes meant that public authorities became responsible for determining the employment status of those they engaged through PSCs or other intermediaries. Public authorities are now obliged to deduct income tax and employee National Insurance Contributions (NICs) and account for employer NICs in respect of payments to PSCs where the individual would have been an employee if engaged directly by the authority rather than through a PSC.

HMRC said: ” the available evidence shows that the public sector reform has been effective in tackling non-compliance with the off-payroll working rules.”

It seems clear then that government has already made its mind up from the consultation document and without a co-ordinated response from the private sector it’s unlikely to change its direction of travel. Responding to this consultation will then become very important for those likely to be affected.

The off-payroll consultation is split into different areas and in total has 34 questions. More information can be found here.

Given the rule changes have already been introduced in the public sector, there are some important lessons that the private and third sectors can expect. The main requirements for the public sector are to:

• Identify contracts where personal services are provided by workers
• Carry out a status review and notify the supplier (agency, PSC etc) whether:
  • the worker would be regarded for income tax purposes as an employee if the contract had been entered into directly between the public authority and the worker; or
  • the worker is an office holder and the services relate to the office; or
  • the new rules do not apply to the engagement
• If paying directly, undertake a status review and deduct tax/NIC if appropriate to the payments after 6 April 2017
• Take reasonable care in arriving at its decision on status
• Respond to any requests from the supplier within 31 days or any potential liability might pass to the public authority or charity (on the freedom of information act list)

What we have also seen is that implementing these rules has not been an easy process for the public sector, with the press paying keen attention. In addition, contractors have not been happy as there are possible implications for past contracts and work undertaken. Switching ‘off-payroll’ contractors to  ‘on-payroll’ suggests that the individuals’ PSCs should have been accounting for tax under IR35 previously.

Earlier this year, the first-tier tax tribunal ruled that IR35 applied to the arrangements between the BBC and Christa Ackroyd, who was engaged to provide presenting services through her PSC. Interestingly, and perhaps because there was a suggestion that the BBC might have encouraged people to take this route, in March the tribunal announced the setting up of an investigation into whether the BBC has some responsibility for people facing retrospective bills from HMRC.

To address concerns about the potential impact of the reforms, HMRC commissioned independent research from IFF Research and Frontier Economics, which  makes for interesting reading. Around half of public authorities included said they found the rules easy to comply with. If you consider that many already had process in place to report to government on off payroll workers, this does not bode well for the private sector who do not have similar arrangements.

It also goes on to state that a considerable proportion had early difficulties in complying with the reform, largely related to familiarising themselves with the new rules with HMRC’s Check Employment Status for Tax (CEST) service, and with resolving disputes with workers and agencies.

In fact the CEST service has been used over 750,000 times. HMRC’s latest figures show that it gives a ‘self-employed’ outcome around 60% of the time, and ‘employed’ around 40% (based on February 2018 data).

So what should all organisations do now? They should:

• Review current off payroll processes. If none are in place, then it is better to get a head start by introducing them immediately before the regulations come into force.
• Respond to the consultation. The closing date for comments is 10 August 2018.
• Keep an eye out for future developments in the press, or at major announcements such as the Budget in November 2018.
• Consider specialist advice if there is any uncertainty about the status of your workforce.

Introducing procedures to deal with this possible legislation extension will involve a number of key stakeholders across the organisation, such as HR, finance, legal, procurement and payroll. Between these functions, an organisation will need to:

• identify those who currently work through intermediaries
• review the processes for determining if individuals are employed or self employed
• review procurement processes to consider the impact
• review engagement processes which are not dealt with through procurement
• amend systems, process maps, internal guidance, contracts and policies to demonstrate that reasonable care has been exercised
• keep a clear audit trail for presentation to HMRC in the event of a review
• assess the costs of implementing the proposed changes on existing and future contracts; consider renegotiating rates to make up for the shortfall.

Above all else, the message is clear – start to plan now, as it will undoubtedly make things easier after April next year.

Susan Ball is Head of Employers Advisory Services at national audit, tax and advisory firm, Crowe Clark Whitehill. Her previous commentary on the original changes to IR35 legislation for public sector bodies can be read here.