PAYE, SA & NIC Directorate
Audit and Briefing Team
Room 1E/10
100 Parliament Street
London
SW1A 2BQ
Mr Gary Burgess
Fax
020 7147 2638
By e-mail to:
[FOI #30073 email]
www.hmrc.gov.uk
Date
15 July 2010
Our ref
FOI 1270/10/IR
Dear Mr Burgess
Freedom of Information Act 2000
Introduction
Thank you for your email dated 11 June 2010 in which you requested an internal review of
your information request. You are seeking information about the use of the new P46 (Expat)
form which was introduced by HMRC on 6 April 2009. You stated that you did not believe
that it would take more than 3 days to gather the information requested. You considered
that:
“if the P46 (expat) data is held on a relational database then it is a very simple query to
group by employer and count the number and sort to show those with the highest count.”
I note that you requested a review after receiving a response to your follow up question
concerning P46 (Expat) forms. Your original request was dealt with under our reference FOI
1270/10 and your follow up request was dealt with under our reference FOI 1405/10. This
review addresses the use of the fees limit in respect of both requests.
Your first request FOI 1270/10
On 3 March 2010, you made the following request to HMRC:
When an employer takes on a new employee in the UK then they should
submit one of the following forms to HMRC:
P45 Part3 - When a new employee starts
P46 - When a new employee starts, but has no P45 from their
previous employer
P46 (Expat) - For certain employees seconded to work in the UK
1. Between May 2009 and January 2010 inclusive, how many employers
took on more expats than non-expats?
Information is available in large print, audio and Braille formats.
Text Relay service prefix number – 18001
Director: Sarah Walker
1270-10 Internal Review
i.e. how many employers submitted more P46 (expat) forms than P45
Part3 forms and P46 forms (either online or in paper or other
format)?
2. For each of these employers, how many P46 (expat) forms, P45 Part3
forms and P46 forms did they submit between May 2009 and January
2010 inclusive?
3. Are there any tax advantages to bringing in expats/seconded workers
from outside the UK rather than employing normal permanent workers
in the UK? E.g. temporary workplace dispensations.
4. Are there any current investigations ongoing into employers
claiming such dispensations for expat employees but keeping the tax
deduction, and not passing it to the employee?
5. Have any past investigations uncovered employers claiming such
dispensations for expat employees and not passing the tax deduction
to the employee?
Our first response
On 24 March 2010, Michelle Blake responded to your request and provided answers to
questions 3 to 5. In respect of questions 1 and 2, she advised you that the FOIA fees limit
was engaged and, under s12(1) of the FOIA, HMRC was not required to deal with the
request. She invited you to narrow your request so that it might not exceed the fees limit.
Your second request FOI 1405/10
On 26 March 2010, you made the following refined request to HMRC:
“Can I request the numbers for the 10 employers that have submitted
the most P46 expat forms since May 2009 please?”
Our second response
On 26 April 2010, Michelle Blake responded by again citing the fees limit and refusing to
deal with your refined request, for the same reasons set out in the first response.
Internal Review
I have been asked to review your request and its handling. The purpose of the internal
review is to provide a fair and thorough review of decisions made pursuant to the FOIA. In
carrying out this review, I have consulted with those involved in dealing with your initial
request. I have also made some additional enquiries to see if there might be alternative
ways of extracting the data you require.
I see that the response was provided within the statutory deadline, in accordance with
section 10(1) of the FOIA. The response set out information about HMRC’s review
procedure and your right to complain to the Information Commissioner, as required by
section 17(7) of the FOIA.
In our initial response, HMRC advised you that it was not obliged to deal with your request
because the fees limit was engaged. Specifically, it was the information sought in questions
1 and 2 which could not be located and extracted within the fees limit. Responses were
provided to questions 3 to 5 outside of our obligations under FOIA, because the information
was readily located.
In our response to your refined request, we gave the same response because the same
extraction process would be required for the narrower request as the original one. I will
explain this further below.
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Exemptions - Section 12(1)
Section 1(1)(a) and (b) of the FOIA describe the general right of access to information held
by public authorities as follows:
(1) Any person making a request for information to a public authority is entitled—
(a) to be informed in writing by the public authority whether it holds information of the
description specified in the request, and
(b) if that is the case, to have that information communicated to him.
Section 12 of the FOIA is known as a procedural exemption because it determines whether
a public authority has to comply with the obligations described above.
Section 12(1) provides that
Section 1(1) does not oblige a public authority to comply with a request for information if the
authority estimates that the cost of complying with the request would exceed the appropriate
limit. As already explained the appropriate limit for central government is £600, which equates to
24 hours work at a rate of £25 per hour.
The principle behind the FOIA is to give people rights to access information held by public
authorities (unless it is exempt). However that right to information must be balanced by the
public authority’s duty to deliver its front line services. The Act allows for public authorities to
decline to comply with requests for information on the grounds of cost where these requests
would be particularly expensive.
If the request exceeds the appropriate limit, a public authority may choose to
-deal with the request and provide the information free of charge,
-deal with the request and charge a fee to cover the communication costs,
-refuse to deal with the request as too onerous.
HMRC’s consistent policy and practice is to decline to deal with requests which exceed the
appropriate limit. The references to section 13 of the FOIA and to the sum of £7,000 were
misleading in our responses. Section 13 only applies when a public authority intends to deal
with a request which exceeds the fees limit, but as I have just explained, HMRC always
declines to deal with such requests.
Under s12, the appropriate limit is intended as a measure or benchmark to enable a public
authority to determine whether or not a request is too onerous. To estimate whether the
fees limit is exceeded, we are entitled to take into account staff time incurred determining if
the department holds the information, as well as locating, retrieving and extracting it. Having
considered each of your requests, I am satisfied that the fees limit has been correctly
applied.
The information requested under Questions 1 and 2 of your first request, as well as the
information requested in your refined request, is information which HMRC has no business
need to collate. For this reason, there are no shortcuts built into our departmental systems
to enable us to readily extract the information you have requested. The particular extraction
and analysis you are requesting has not previously been commissioned within HMRC. To
extract this data would therefore require us to commission a bespoke scanning programme
through our IT service provider. This requisitioning process involves a number of stages,
including design, development and testing and a number of staff are involved at each stage.
The number of hours involved in the requisition of any single data extraction of this type
would therefore exceed the 24 hour limit.
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Since September 2009, HMRC has had a dedicated Expatriate team in Manchester which
has taken over responsibility for dealing with this area of work. I made enquiries to see
whether they held any information or data which might answer your requests. They
confirmed that the data in their locally held management information would not enable your
questions to be answered either.
Although we invited you to narrow your request each time so that it might fall within the fees
limit, I have now concluded that it is unlikely that HMRC would be able to provide information
of the type you are seeking. I am sorry that we cannot assist you further.
Appeals process
If you are not content with the outcome of an internal review, you may apply directly to the
Information Commissioner for a decision. The Information Commissioner will not usually
consider a case unless you have exhausted the internal review procedure provided by
HMRC. He can be contacted at The Information Commissioner’s Office, Wycliffe House,
Water Lane, Wilmslow, Cheshire SK9 5AF.
Yours sincerely
Jackie Riley
Audit and Briefing Manager
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