IR35 Public Sector Contracting

In Spring Budget 2016 new restrictions on contracts in the Public Sector were unveiled, due to come into effect April 2017.  The Autumn Statement 2016 confirmed these changes.

The crux of these changes is that engager – the Public Sector Body or the agent contracted to them – will need to make IR35 status decisions and make IR35 deductions at source

How will IR35 differ in the Public Sector versus Private Sector?

Non Public Sector Contracts Public Sector Contracts
Responsibility for Status Decisions PSC Public Sector Body
Responsibility for making deductions on contracts inside IR35 PSC Person paying the PSC – Agent, or Public Sector Body if no agent
Tax and Employees NI borne by PSC PSC
Employers NI borne by PSC Person paying the PSC – Agent, or Public Sector Body if no agent
5% expense deduction Allowed Not Allowed
Employment protection None None
SSP/SMP and similar PSC PSC

Scope of the New Rules

These new rules apply where the engager – the Public Sector Body – is within the scope of Freedom of Information Act.

Circumstances when the rules apply:

  • When a contractor working via a PSC contracts to an Public Sector Body directly or via an agent; and
  • The status tests are failed, the responsibility for the test being with the Public Sector Body (on request, if necessary, from the agent)

Circumstances when the rules will not apply:

  • A contractor working via PSC is engaged on an outsourced Public Sector project (HMRC give the example of a project manager contracting to a construction company who have a contract to build a hospital wing).  However normal IR35 considerations still apply in this relationship
  • Contractor works via a Umbrella Company – as tax and NI is deducted under PAYE anyway

Employment Status Tests

The Employment Status Tests themselves haven’t changed – see our guide to Status Tests.  The same rules apply inside or outside of the Public Sector

However HMRC have developed a new tool for Public Sector Engagers to use – there are concerns it may not be objective.

This tool was published on 2 March 2017, and can be viewed here on HMRC site

Caught Contracts – In Practice

When a contractor works through a PSC for a Public Sector Body and the contract is deemed inside the rules, then the following happens:

  • The agent, or if no agent the Public Sector Body, must treat the ex vat PSC fee as a gross salary amount and deduct tax and NI under PAYE and account via RTI in the name of the contractor personally.
  • The agent, or if no agent the Public Sector Body, must also pay employers NI – note this differs from the standard IR35 approach where the contractor would bear this
  • The contractor can offset the amount on which tax and NI has been deducted by the agent or Public Sector Body (normally the net invoice) against remuneration from their own company , implying they must draw a salary of a similar level

The 5% general expense allowance that applies generally under IR35 is denied on public sector contracts.

In theory the contractor can deduct via their PSC direct expenses such as eligible travel, and specific deductions PI insurance and pension costs, but its unclear what these are relieved against if all the PSC income is from a public sector contract.

Consequential Effects

There is no change to how VAT works in these circumstances.  It is still charged on top of the invoice by the PSC, received from the agent/engager, and paid over.  Deductions for IR35 work on the net after VAT amount.

There is no change to employment rights / employment protections, and no extra rights accrue.  No Public Sector pension entitlements accrue.

The PSC is still responsible for SSP, SMP and similar.

HMRC Guidance and Examples

HMRC published a  briefing with Budget 2016

HMRC published a technical note in December 2016 which is the main guidance available, with examples

HMRC published summary information in February 2017

HMRC published updated information and the Employment Status Checking Tool on 2 March 2017

Whitefield Case Studies

We’ve prepared some examples on how the changes may impact a hypothetical client with a gross contract rate of £100k

IR35 Public Sector Examples

Practical Strategies

Its clear this new regime will take a while to bed down.  Initial observations are:

  • A number of Public Sector Bodies are now saying that all contractors must be paid via an Umbrella company – there is some logic in this in that it takes away the need for the engager to operate the new rules, however the headline rate a contractor receives will be lower via an Umbrella due to the Employers NI that needs to be borne, and, of course, full Employees NI and tax will have to be deducted under IR35 with minimal offset for expenses.
  • If the agency or Public Sector Body continue to pay your company, but deem the contract inside IR35, then they are bearing the Employers NI – expect a possible downward rate adjustment, or check tax clawback clauses in contracts.
  • More long term this may make Public Sector contracts less attractive, with the possibilities of making it difficult for the Public Sector to recruit, moving work towards more expensive consultancies, or push contract rates up in the Public Sector.  Its reasonable to ask, at a time of considerable change in and turbulence in Government, whether this has been thought through.

In terms of practical considerations for our clients working in the Public Sector:

  • If your contract is deemed caught and you continue to operate via your PSC, then we can certainly accommodate the debits and credits in your tax returns and accounts, and help set the appropriate offsetting salary in your PSC.
  • If you decide to take a permanent role, or permanently use an umbrella arrangement instead, then we can assist in closing down your company – our guide is here.  (see below re umbrellas, and the possibility of a Whitefield Umbrella)
  • If you decide – or are forced – to use an umbrella for the current contract then we can assist in putting your company on hold – again, our guide is here.  Our regular fees reduce to 50% after three months of not actively using your own company (again see below regarding Umbrellas, and the possibility of a Whitefield Umbrella)

Finally beware of any offshore solutions which promise to get around the rules, or companies promising to negate the effects of the rules.  If something looks too good to be true, it probably is, and many contractors are currently counting the cost of involvement in EBT arrangements and other failed schemes.

In terms of selecting an Umbrella, Whitefield historically have not offered Umbrella Solutions to our clients.  However we are looking closely (February 2017) at developing an simple umbrella solution for those being guided this way by a Public Sector Client/Agent – we would intend it to be compliant with all UK legislation and procedures.  If this is something of interest, please let us know.

Back to IR35: resources on our site

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