Letter re off-payroll from HMRC

NHS Digital did not have the information requested.

Dear NHS Digital,

The Off-payroll legislation was introduced in Chapter 10 of the Income Tax (Earnings and Pensions) Act 2003, with the new legislation going live from April 6th 2017. This new legislation overrode, in the public sector, the existing Intermediaries Legislation (Chapter 8, ITEPA).

The new legislation is here:
https://www.legislation.gov.uk/ukpga/201...

Around July 2018 HMRC sent your body a letter asking for information related to “Checking compliance with the rules from April 2017”

For easy identification, a copy of the letter is as follows:

-- Letter start --

Off Payroll Reform in the Public Sector
Section 61M Chapter 10 ITEPA 22003 and Regulation 13 Social Security (Miscellaneous Amendments No.) Regulations 2017

Following the introduction of chapter 10 ITEPA 2003 and certain amendments to chapter 8 ITEPA 2003 (“IR35”), new rules apply in relation to off-payroll working in the public sector from 6 April 207. Where individuals work and are paid through their own intermediary, public authorities as defined in the legislation) are now responsible for deciding whether the rules apply. Where a person is assessed as being with the new rules, the public authority agencies and third parties paying the fee for the services of the worker must operate tax, NICs and operate the Apprenticeship Levy.

I would like to check your compliance with the new legislation, including any systems you have introduced to help you decide whether the offpayroll rules should apply when engaging workers via their own intermediary (either directly or via an agency or other labour provider). Such an intermediary will often be a ‘personal service company’, but as the legislation also applies where a worker is engaged via a partnership or another person, I will use the terms ‘PSC or other intermediary’ and ‘PSC etc’ in this letter.

I have listed the information we need below and would be grateful for your response by 31 August 2018. If the amount of information I have requested will make this difficult, please contact me to discuss how this can be managed.

Checking compliance with the rules from April 2017

1. Please describe the steps you took prior to April 2017:
i. to review the off-payroll engagement of PSCs or other intermediaries, to decide whether the off-payroll rules would apply
ii. please include an explanation of any different or additional steps taken in relation to PSCs etc that you engaged via an agency or other labour provider.

2. If different from 1 above, please describe the systems / processes currently in place to decide whether the off-payroll rules apply to PSCs etc, whether you engage them directly or via an agency or other labour provider. Please provide a copy of any internal guidance / operating procedures for your staff, and comment on:
i. who is responsible for carrying out the checks and approving decisions
ii. whether the Check Employment Status for Tax tool (CEST) is used to inform decisions as to whether the rules apply, and
iii. how you ensure compliance where the PSC is engaged via an agency or other labour provider.

3. For the tax year 2107/2018, if you directly engaged with and paid any worker’s own PSC or other intermediary, please tell us:
i. the total number of such PSCs etc that you engaged directly
ii. the number of such PSCs etc that you decided were within the scope of the legislation
iii. if different from (ii), the number of such PSCs etc that have been subject to deduction of tax and NIC and included in an RTI submission
iv. the number of such PSCs etc that you decided were outside the scope of the legislation
v. the names, addresses and a brief description of the worker role / nature of services provided by the PSCs etc within (iv) above.

4. For the tax year 2017/18, if you were invoiced by any agency or other labour provider for services via a worker’s own PSC or other intermiary, please provide the name of each such agency or other labour provider and, or each of them, please tell us:
i. the total number of such PSCs etc supplied by that agency / labour provider
ii. the number of such PSCs etc that you decided were within the scope of the legislation
iii. whether you told the agency / labour provider that the rules applied for every PSC etc within (ii) above and if not, please explain why not)
iv. the number of such PSCs etc, that you decided were outside the scope of the legislation
v. the name, addresses and a brief description of the worker role / nature of services provided by the PSCs etc within iv) above.

5. Please identify any workers / PSCs etc that you decided were within the off-payroll rules, which have subsequently been engaged / paid via umbrella companies. Do you have any policy in place that encourages the use of umbrella companies for those found to be within the rules?

6. For those not working through umbrella companies, have any workers that previously worked through their own PSC etc subsequently entered into employment contracts with your group?

7. The offpayroll rules do not apply where a public authority has fully contracted out servicces to a third party e.g. an outsourcing company operating under a contract where the workers do not personally provide their services to the public authority. If you believe this applies to you, please provide an explanation for the affected contract(s).

More information about the check

I enclose factsheet CC/FS1c ‘General information about compliance checks into certain large and complex businesses’. Please take time to read this, it gives you more information about this type of check. I also enclose factsheet CC/FS22 ‘Sending us electronic records’.

If you have any questions, please contact me using the details shown at the top of this letter.

-- Letter end --

Please can you provide:

1. Confirmation as to whether you received the letter
2. Confirmation as to whether you responded to the letter to HMRC.
3. Confirmation as to whether you provided ANY or all of the information to HMRC.
4. A copy of your response to that letter with the following direction: Instead of the exact answers for 3(v) and 4(v) (which are likely to be confidential) please instead tell us the number of items on those lists.

If the FOI time limit of 3.5 hours is such that not all of these records can be obtained in the time limit of 3.5 hours, then please provide as much as possible until the time limit is reached. Thank you.

Yours faithfully,

Dave Chaplin

NHS Digital Enquiries (NHS DIGITAL),

 

Ref: NIC-262737-T5D9R 

Dear Dave Chaplin,

I am writing to acknowledge that your request for information was received
by NHS Digital on 15/01/2019 and is currently being considered.

If NHS Digital is able to provide you with the information you have
requested, then under the Freedom of Information (FOI) Act you are
entitled to receive it promptly and in any event no later than the 20th
working day following the date of receipt. However, we may need to contact
you to clarify your request. If this is required we aim to do this
promptly but no later than 7 days after receiving your initial request for
information.

May I take this opportunity to explain the FOI Act in more detail? The Act
provides a 'General right of access to information held by public
authorities'. However, it also defines a number of exemptions which may
prevent the release of some or all of the information you have requested.
Therefore, NHS Digital will assess your information request in light of
any relevant exemptions.

If exemptions do apply, then NHS Digital may decide not to release all, or
part, of the information you have requested. I shall inform you if this is
the case, and advise you of your rights of appeal.

If the information you request contains reference to a third party then
they may be consulted prior to a decision being taken as to whether to
release the information to you.

The response to your request will be sent to you by email, however if you
require your response in any other format, please contact us to discuss a
suitable format.

NHS Digital will not normally charge a fee to provide you with the
information you have requested, unless the cost of dealing with your
request is more than £450 as outlined in Section 12 of the FOI Act and
Section 3 of the The FOI and Data Protection (Appropriate Limit and Fees)
Regulations 2004. If it appears likely that your request will cost more,
then NHS Digital is able to refuse to supply the information.  As per our
obligations under Section 16 of the FOI Act, every effort will be made to
provide you with details of how you may be able to reframe your request in
order for us to complete the required work within the (£450 / 18 person
hours) cost limit.

If you have any queries or should you wish to make a complaint about the
manner in which your request is being processed then please do not
hesitate to contact us at [1][NHS Digital request email] in the first
instance. Any complaints will be investigated in accordance with NHS
Digital's complaints procedure.

Further information about your rights under the Freedom of Information
Act, is available from the Information Commissioner's Office, Wilmslow,
Cheshire and on the NHS Digital website.

Kind Regards,

Contact Centre Team
NHS Digital
[2]www.digital.nhs.uk

0300 303 5678
[3][NHS Digital request email]

1 Trevelyan Square | Boar Lane | Leeds | LS1 6AE

You can find out more about our service, including our response times and
customer charter on the NHS Digital website:
[4]https://digital.nhs.uk/about-nhs-digital...

[5]Privacy and cookies

NHS Digital Customer Service Contact Centre in Leeds, has been awarded
Customer Service Excellence Standard Certification, In accordance with the
requirements of the Cabinet Offices Customer Service Excellence Standard

------------------- Original Message

show quoted sections

Please use this email address for all replies to this request:
[FOI #545040 email]

Is [NHS Digital request email] the wrong address for Freedom of
Information requests to NHS Digital? If so, please contact us using this
form:
[7]https://www.whatdotheyknow.com/change_re...

Disclaimer: This message and any reply that you make will be published on
the internet. Our privacy and copyright policies:
[8]https://www.whatdotheyknow.com/help/offi...

For more detailed guidance on safely disclosing information, read the
latest advice from the ICO:
[9]https://www.whatdotheyknow.com/help/ico-...

Please note that in some cases publication of requests and responses will
be delayed.

If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.

-------------------------------------------------------------------

References

Visible links
1. mailto:[NHS Digital request email]
2. http://www.digital.nhs.uk/
3. mailto:[NHS Digital request email]
4. https://digital.nhs.uk/about-nhs-digital...
5. https://digital.nhs.uk/about-nhs-digital...
6. https://www.legislation.gov.uk/ukpga/201...
7. https://www.whatdotheyknow.com/change_re...
8. https://www.whatdotheyknow.com/help/offi...
9. https://www.whatdotheyknow.com/help/ico-...

NHS Digital Enquiries (NHS DIGITAL),

1 Attachment

Ref: NIC-262737-T5D9R 

Dear Dave Chaplin,

Many thanks for your recent request to NHS Digital.

We have now received a reply to this from our colleagues in the
Information Governance team.

Please see the attached file(s).

Kind Regards,

Contact Centre Team
NHS Digital
[1]www.digital.nhs.uk

0300 303 5678

[2][NHS Digital request email]

1 Trevelyan Square | Boar Lane | Leeds | LS1 6AE

HSCIC now operate under the new trading name of NHS Digital – clarifying
our role as the national information and technology partner for the health
and care system.

[3]Privacy and cookies

NHS Digital Customer Service Contact Centre in Leeds, has been awarded
Customer Service Excellence Standard Certification, In accordance with the
requirements of the Cabinet Offices Customer Service Excellence Standard

------------------- Original Message

show quoted sections

Please use this email address for all replies to this request:
[FOI #545040 email]

Is [NHS Digital request email] the wrong address for Freedom of
Information requests to NHS Digital? If so, please contact us using this
form:
[5]https://www.whatdotheyknow.com/change_re...

Disclaimer: This message and any reply that you make will be published on
the internet. Our privacy and copyright policies:
[6]https://www.whatdotheyknow.com/help/offi...

For more detailed guidance on safely disclosing information, read the
latest advice from the ICO:
[7]https://www.whatdotheyknow.com/help/ico-...

Please note that in some cases publication of requests and responses will
be delayed.

If you find this service useful as an FOI officer, please ask your web
manager to link to us from your organisation's FOI page.

-------------------------------------------------------------------

References

Visible links
1. http://www.digital.nhs.uk/
2. mailto:[NHS Digital request email]
3. https://digital.nhs.uk/about-nhs-digital...
4. https://www.legislation.gov.uk/ukpga/201...
5. https://www.whatdotheyknow.com/change_re...
6. https://www.whatdotheyknow.com/help/offi...
7. https://www.whatdotheyknow.com/help/ico-...