Sector Specific Guidance for IR35 helpline and email service

The request was refused by HM Revenue and Customs.

Dr Colin Iain Campbell MBChB FRSPH

Dear HM Revenue and Customs,

Under the FOIA 2000, please disclose:

All current sector specific guidance/policy documents used by call handlers/those responding to [email address] emails from the following sectors:

1. Healthcare in the Public Sector
2. Healthcare in the Private Sector
3. Public sector Education
4. Broadcasters/TV presenters/Actors

Additionally please disclose:
1. Generic IR35 guidance/Policy documents in use by these teams
2. Any policy documents/guidance regarding the liabilities and responsibilities of the fee payer.

I would like the information to be provided by email or on this website in electronic form. If my request is denied in whole or in part I ask that you justify all deletions by reference to specific exemptions of the act. I will also expect you to release all non-exempt material. I reserve the right to appeal your decision to withhold any information or to charge excessive fees. I would be grateful if you could confirm in writing that you have received this request. I look forward to your response within 20 working days as outlined by the statute. Many thanks for your assistance with this request.

Yours faithfully,
Dr Colin Iain Campbell MBChB FRSPH

foi.team@hmrc.gsi.gov.uk on behalf of FOI Central Team, HM Revenue and Customs

Our ref: FOI2018/01838

Dear Dr Campbell,

Freedom of Information Act 2000 Acknowledgement

Thank you for your communication of 17th August which has been passed to
HMRC's Freedom of Information Team.

We have allocated the above reference which you should quote if you need
to contact us.

The Team will arrange for a reply to be sent to you which will either
comply with HMRC's obligations under Freedom of Information Act or, if we
think it's an enquiry that we don't need to address under the terms of the
Act, let you know why. If it is the latter we will, if possible, pass it
on to a more appropriate part of the Department for answer.

Yours sincerely

HMRC Freedom of Information Act Team

foi.team@hmrc.gsi.gov.uk on behalf of FOI Central Team, HM Revenue and Customs

1 Attachment

Dear Dr Campbell,

I am writing in response to your request for information, received 17th
August.

Yours sincerely,

HMRC Freedom of Information Team

Dr Colin Iain Campbell MBChB FRSPH

Dear HM Revenue and Customs,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of HM Revenue and Customs's handling of my FOI request 'Sector Specific Guidance for IR35 helpline and email service'.

With respect to the guidance referred to here:

Occasionally HMRC staff may need to look deeper into internal guidance in order to deal
with more complex IR35 queries. This may include internal IR35 guidance to which your
request refers. The release of such guidance is withheld under section 31(1) (d) of the FOIA.
This exemption applies to information held where disclosure would likely prejudice the
assessment or collection of tax.

Regarding your decision to claim a Section 31(1)(d) exemption in relation to the factual guidance used by HMRC in handling queries and in pursuing action against individuals there are a number of relevant representations to make:

Firstly as regards the information itself and which exemption may or may not apply:

FOIA 2000 Section 30 states:

"
30 Investigations and proceedings conducted by public authorities

(1) Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes of—
(a) any investigation which the public authority has a duty to conduct with a view to it being ascertained—
(i) whether a person should be charged with an offence, or
(ii) whether a person charged with an offence is guilty of it,
(b) any investigation which is conducted by the authority and in the circumstances may lead to a decision by the authority to institute criminal proceedings which the authority has power to conduct, or
(c) any criminal proceedings which the authority has power to conduct.
(2) Information held by a public authority is exempt information if—
(a) it was obtained or recorded by the authority for the purposes of its functions relating to—
(i) investigations falling within subsection (1)(a) or (b),
(ii) criminal proceedings which the authority has power to conduct,
(iii) investigations (other than investigations falling within subsection (1)(a) or (b)) which are conducted by the authority for any of the purposes specified in section 31(2) and either by virtue of Her Majesty’s prerogative or by virtue of powers conferred by or under any enactment, or
(iv) civil proceedings which are brought by or on behalf of the authority and arise out of such investigations, and
(b) it relates to the obtaining of information from confidential sources.
(3) The duty to confirm or deny does not arise in relation to information which is (or if it were held by the public authority would be) exempt information by virtue of subsection (1) or (2).
(4) In relation to the institution or conduct of criminal proceedings or the power to conduct them, references in subsection (1)(b) or (c) and subsection (2)(a) to the public authority include references—
(a) to any officer of the authority,
(b) in the case of a government department other than a Northern Ireland department, to the Minister of the Crown in charge of the department, and
(c) in the case of a Northern Ireland department, to the Northern Ireland Minister in charge of the department.
(5) In this section—
“criminal proceedings” includes—
(a) proceedings before a court-martial constituted under the Army Act 1955, the [1955 c. 18.] Air[1955 c. 19.] Force Act 1955 or the [1957 c. 53.] Naval Discipline Act 1957 or a disciplinary court constituted under section 52G of the Act of 1957,
(b) proceedings on dealing summarily with a charge under the Army Act 1955 or the [1955 c. 18.] Air[1955 c. 19.] Force Act 1955 or on summary trial under the [1957 c. 53.] Naval Discipline Act 1957,
(c) proceedings before a court established by section 83ZA of the [1955 c. 18.] Army Act 1955, section 83ZA of the [1955 c. 19.] Air Force Act 1955 or section 52FF of the [1957 c. 53.] Naval Discipline Act 1957 (summary appeal courts),
(d) proceedings before the Courts-Martial Appeal Court, and
(e) proceedings before a Standing Civilian Court;
“offence” includes any offence under the [1955 c. 18.] Army Act 1955, the [1955 c. 19.] Air Force Act 1955 or the [1957 c. 53.] Naval Discipline Act 1957.
(6) In the application of this section to Scotland—
(a) in subsection (1)(b), for the words from “a decision” to the end there is substituted “a decision by the authority to make a report to the procurator fiscal for the purpose of enabling him to determine whether criminal proceedings should be instituted”,
(b) in subsections (1)(c) and (2)(a)(ii) for “which the authority has power to conduct” there is substituted “which have been instituted in consequence of a report made by the authority to the procurator fiscal”, and
(c) for any reference to a person being charged with an offence there is substituted a reference to the person being prosecuted for the offence.

"
You will note that under 1 (b) and (c) Information held by a public authority is exempt information if it has at any time been held by the authority for the purposes of any investigation which is conducted by the authority and in the circumstances may lead to a decision by the authority to institute criminal proceedings which the authority has power to conduct, or any criminal proceedings which the authority has power to conduct.

As it clearly might if it were to emerge that someone were attempting to deliberately cheat the revenue in the course of such investigations. Your answer also suggests that (1)(a) (i) and (ii) might also be engaged here as such considerations would cover both lawful avoidance, unlawful abusive avoidance subject to GAAR, and tax evasion.

It would appear on balance that either or both of these clauses may be engaged and thus the claimed Section 31 exemption cannot apply (as it only applies where information is not already exempt under Section 30)

However with respect to the public interest in disclosure under Section 30:
All of the details of cases HMRC has pursued are in the public domain by dint of having gone to court. Furthermore, as you have previously stated, HMRC has been using this as the basis of advice to countless members of the public. It is recognised that the information having been passed into the public domain in this way (through court cases and many thousands of telephone discussions) is a significant factor in considering the public interest in Section 30 disclosures.

Furthermore, with respect to significance and sensitivity - although HMRC's manual, which you have linked, states the approach taken by tribunal cases in a manner that is broadly correct, there is evidence that those on this telephone helpline, and HMRC's IR35 lead are not, in fact following this approach and are instead pushing public bodies into adopting one-size-fits-all blanket and role based assessments. https://www.gov.uk/hmrc-internal-manuals...

We thus wish to see the guidance used to understand if the internal guidance itself is defective - which we would highlight to the National Audit Office and Treasury Select Committee, we would also like to establish if the incorrect advice is emanating from ministers or civil servants. The document you have sent here https://www.gov.uk/hmrc-internal-manuals... appears at complete odds with the approach usually taken in the health sector, and across most of the public sector, and the advice given by your email and telephone teams on IR35.

This incorrect advice is resulting in what an overwhelming number of independent experts we have spoken to regard as incorrect assessments as deemed employees ( i.e. forced false employment without employment rights of the self employed) being reached without reasonable care, which is a miscarriage of justice even if it helps "maximise the revenue". Maximising the revenue is something HMRC should be seeking to do by lawful means only.

We are interested in the internal HMRC documentation and procedures in play here and the information materially affects the employment status decisions of tens of thousands of doctors, nurses, and AHPs, along with hundreds of thousands of other public sector workers. The public interest in disclosure is overwhelming and I would direct you to Jolyon Maughlin QC's opinion before select committee of what is occurring in the NHS and BBC presently https://goo.gl/ZxGJKW

There is an overwhelming public interest in upholding the civil service code, and that demands transparency with respect to approach. I believe the information is likely subject to section 30 and that the public interest in section 30 favours disclosure. It cannot thus be subject to Section 31, as section 31 does not apply where section 30 is engaged.

The above is also relevant to the claimed qualified Section 31 Exemption (which as mentioned above cannot apply where Section 30 is engaged) specifically the public interest in preventing crime against individuals - whilst it is not certain whether it is a serious lacking in competence or deliberate policy decision, entire professions are being subjected to forced false employment without an assessment with reasonable care. Protecting individuals form unjust and unlawful behavior, including but not limited to that prohibited by statute is a strong grounds for release. We are aware of multiple recorded phone calls in which HMRC representatives appear to contradict the legislative position as regards whether the fee payer can disagree with the the public bodies position in quite categorical terms. Whilst this may be a mistake by the individuals (it is repeated) it may also be due to errors in this guidance and it is vital to the public interests that these problems are explored, and rectified. This could be causing many people to be in a situation where their assessments have been arrived at without reasonable care, where discretion has been fettered by the public body, or a blanket approach has been incorrectly taken to be stuck in this position. It is also possible some people could have been erroneously placed outside IR35 and the fee payer is baring financial liability for a decision with which HMRC is concealing its statutory requirement to disagree if it is not convinced the necessary conditions have been met to make deductions.

Also much as HMRC does not like it, and would rather "maximise ther evenue" as barrister Keith Gordon put it before Treasury Select Committee 'Whether it is right in law or not' ( https://youtu.be/GrmBliBc-eE ), citizens do have a right to organise their tax affairs enshrined in the caselaw (see Lord Clyde in Ayrshire Pullman Motor Services v Inland Revenue 1929, 14TC754), solongas such arrangements are not abusive (i.e. for example by passing the double reasonableness test in GAAR). The fact that such information may help them understand better what steps they can take to help their practices align with their intent to be self-employed and reduce the risk of tax liability which will prevent them meeting their business expenses incurred wholly and exclusively for their business save against their personal income, has some public interest for individuals. HMRC is reminded that, contrary to its rhetoric, the genuinely self employed are a huge boon to the economy.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/s...

Yours faithfully,

Dr Colin Iain Campbell MBChB FRSPH

foi.team@hmrc.gsi.gov.uk on behalf of WMBC FOI Mailbox, HM Revenue and Customs

Our ref: IR2018/02050

Dear Dr Campbell,

Freedom of Information Act 2000 Acknowledgement

Thank you for your communication of 12th September which has been passed
to HMRC's Freedom of Information Team.

We have allocated the above reference which you should quote if you need
to contact us.

The Team will arrange for a reply to be sent to you which will either
comply with HMRC's obligations under Freedom of Information Act or, if we
think it's an enquiry that we don't need to address under the terms of the
Act, let you know why. If it is the latter we will, if possible, pass it
on to a more appropriate part of the Department for answer.

Yours sincerely

HMRC Freedom of Information Act Team

foi.team@hmrc.gsi.gov.uk on behalf of WMBC FOI Mailbox, HM Revenue and Customs

1 Attachment

Dear Dr Campbell,

I am writing in response to your request for information, received 12th
September.

Yours sincerely,

HMRC Freedom of Information Team