New Qdos Contractor research indicates that 38% of contractors have been subject to blanket determinations placing them inside IR35 in the public sector. These decisions, made by the engager, result in all contractors working in a particular organisation being made to operate under IR35 without a review of their individual working practices.
Worryingly, these blanket-inside IR35 decisions aren’t confined to only a few organisations, with contractors reporting that many public sector bodies are guilty of this approach. Ironically, 19% of contractors in this data set worked on HMRC projects at the time.
If this isn’t concerning enough, the research suggests that Government departments in total account for at least 38% of these blanket inside-IR35 decisions, with MoD, MoJ, and the Home Office each apparently failing to recognise unique aspects of a contract which IR35 status can hinge on.
The research, carried out to support Qdos Contractor’s IR35 consultation response, suggests that HMRC is exposing its own organisation to non-compliance as it drives towards its goal of netting an estimated £1.2bn a year through reform.
In its attempt to raise tax receipts, HMRC has previously been criticised for chasing the most amount of tax, not the right amount of tax. These statistics simply add more fuel to that fire.
Blanket decisions lack ‘reasonable care’ and, according to the IR35 legislation, are non-compliant. But role-based assessments on the other hand, abide by the rules, as the latest forum notes explain:
“There will be occasions where workers are hired to carry out identical roles, with the same terms and conditions, and where the same determination is therefore correct. This is legitimate and does not amount to a blanket ruling. Treating people in the same factual position in the same way meets the statutory obligation to use reasonable care.”
However, eyebrows have been raised about the fairness of these role-based assessments. A number of IR35 experts have spoken out against them, and Dr Iain Campbell, who heads up The Independent Health Professionals Association (IHPA), is particularly vocal on the issue.
“Role based assessments are always blanketing as it is impossible to assess factors such as the contractor’s financial risks, company structure, working practices, and in particular willingness to be subject to supervision, direction and control, or the myriad of other factors that need to be considered.”
In fact, Qdos Contractor stated in its consultation response, that by definition, role-based decisions cannot ensure accuracy because they set out status before the contract has started and so ignore actual working practices, which hold more weight in an IR35 investigation.
Engagers placing contractors inside IR35 without a fair review of their individual working arrangement can lead to individuals being wrongly taxed as employees. Should companies administer IR35 this way, they risk non-compliance and leave the door open for contractors to claim back incorrect tax payments – incidentally, a trend which is on the rise, as Qdos Contractor highlighted recently.
In response to continued uproar over blanket determinations, public sector engagers (most notably The NHS) are keen to distance themselves from them. Stephen Barclay, Minister of State for the Department of Health and Social Care recently argued he does “not recognise that (NHS) trusts are operating blanket determinations.”
One imagines that NHS locums and contractors, thousands of whom continue to be placed inside IR35 without their own assessment, will disagree with this statement. Certainly, Dr Iain Campbell, does.
“The position is quite the opposite of the line Steve Barclay MP is being fed by civil servants. We are not aware of a single NHS trust that is complying with the legislation and entire professions are being blanketed into forced false employment without reasonable care.”
Another independent worker, who preferred to remain anonymous, explained that Network Rail has taken a similar view to The NHS. He said the organisation, was “clearly not prepared” for reform and now applies a “blanket inside ruling.”
So, is enough being done to ensure – when contractors are working in similar but not the same, roles – that blanket inside-IR35 assessments aren’t simply being passed off as role-based decisions? Nearly four in ten public sector contractors subject to these decisions suggests not.
Ultimately, HMRC is right in the fact that blanket decisions are non-compliant. And yet judging by this research sample – it is the taxman himself (among others) that is breaking the rules.