Archive for the ‘Employment’ Category


Minimum wage

June 5, 2014

Could you live on the minimum wage?  Do you even know what the minimum wage is?

It’s £6.31 an hour, if you’re over 21.  That’s £227.16 a week if you’re on a 36 hour week.  Just under twelve grand a  year.  (And a couple of grand of that is still taxed, too)

Now imagine you’re in a crappy job that doesn’t quite pay you twelve grand a year, and you have to drive around to old people’s houses and make their dinners or get them in and out of bed, and you’re not paid except for the time you’re actually in the room with the client, because the rest of the time you’re on a “rest break” (because driving from one side of the city to another in the middle of the day is so restful) and you’re vaguely aware there’s something wrong with your wage packet because you seem to have been working like a dog for forty seven hours, counting from when you left the house till when you got home, but you’ve still got barely two hundred quid in your wage packet.

What are you going to do?

Because if you complain, if you stick your head over the parapet, why, you aren’t going to work again next week, are you?  And when you go to sign on, you’re as like as not to be told you’ve made yourself voluntarily unemployed so go away and starve quietly…

There’s an asymmetry, in other words, between the employer and the employee.  In the twentieth century you might have said, well, they ought to join a union, but Thatcher did for unions, didn’t she, so these days you’d say, well, there’s minimum wage legislation.  Ring the HMRC hotline…

Which is good, but HMRC have issued a “look how brilliant we are” press release today which has really got my goat.

First thing: is is legal to refuse to pay travelling time under those circumstances?  I don’t know, but the practice is so widely reported that I had assumed it must be.  But look at the middle of page 14 of this HMRC report which says that “time work” includes

travelling in connection with their work. This includes time spent:

o travelling between appointments (but not rest breaks)

o travelling from work to a training venue

Well, if travelling time IS included in minimum wage calculations, why not clearly say so?  Instead of issuing a press release bragging that you have

recovered average arrears of around £205 per worker.

Two hundred quid???  I mean, if it’s money they’re entitled to then, yes, they should have it – but I’d be a lot more impressed if there had been some prosecutions or that the

issued 652 financial penalties, worth £815,269

had been 652 penalties averaging £800 grand instead of totalling £815k – and so averaging £1250.  I mean, scary, right?  Plenty to keep some bastard employer from screwing his poorly-paid staff out of the money they’re entitled to in order to bump up his massive profits.  Oops – sorry, I’m being normative again…

Let’s look at the worked examples in that HMRC paper for a moment again, shall we?  Turn back to page 14 and look at example 1.

Example 1 Domiciliary care worker A is paid £6.35 per hour and is paid weekly. The employer has paid the worker £190.50 for 30 hours worked. Time records show the worker spent a total of 45 minutes that week travelling between clients that had not been recorded as working time.

How to check compliance with NMW legislation

The minimum amount paid to the worker should be £6.31 x 30.75 hours = £194.03

The worker was paid £190.50 so therefore has been underpaid the NMW by £3.53 that week (£194.03 minus £190.50).

Now, just hold on a minute there – the worker is paid £6.35 per hour.  They have been paid for 30 hours when they should have been paid for 30 hours and 45 minutes.  So they have been underpaid by .75x £4.76, but HMRC will only pursue for the difference between the NMWxhours worked and pay, and not for the difference between ACTUAL pay rate x hours worked and amount paid?  In this instance (and the 45 minutes is a pretty unbelievable travel time but let that go) it only amounts to a few pence but how is the worker to collect it?

Look at example two:

Example 2 Domiciliary worker B is paid £7.50 per hour and is paid weekly. The employer has paid the worker £225 for 30 hours worked (30 x £7.50) Time records show the worker spent 2 hours that week travelling between clients that had not been recorded as working time.

How to check compliance with NMW legislation

The minimum amount paid to the worker should be £6.31 x 32 hours = £201.92 As the worker was paid above £201.92 (i.e. above the NMW amount) no arrears are due even after taking account of the additional 2 hours working time spent travelling.

They have, however, been stiffed out of £15 – two hours’ pay – they should have been paid £240 (32 x £7.50) rather than £225 (30 x £7.50).  But because the amount they have been paid is more than the legal minimum, the HMRC NMW enforcement team is going to be no use to them.

That’s like saying everyone’s entitled to £57.35 a week, so if I come along and mug you and nick fifty quid out of your purse, the police won’t do anything about it if I leave you with £57.35, isn’t it?

Ah yes, but the administration of the benefits system and the justice system are different, and so are the administration of the NMW and employment law, right?  So the HMRC team that enforces National Minimum Wage can’t get involved if your employer is ripping you off in some way that doesn’t involve breaking the NMW legislation, right?

Sod that.  There’s an easy fix.  First, make it crystal clear that travelling time – except home to the first visit, and last visit to home – is working time.  Publicise THAT and the press release might be worth having.  Second, issue the workers and the employers with an official HMRC document at the end of any investigation which says clearly the rate of pay and the number of hours worked.  This then would be prima facie evidence that the worker could use to sue the employer for the rest of it, the amount they’ve ripped off that isn’t covered by minimum wage legislation – the five pence not enforced by HMRC in the first example, and the fifteen quid HMRC weren’t interested in, in the second example.

How would the worker make use of that?  Well, an individual worker could sue separately, but it’s likely to be too small an amount for an individual to take the risk.  But maybe for a collection of workers you might get, god help us, the claims management companies stepping in and suing the employer on behalf of a number of workers.  Or – and here’s a thought – how about some kind of collective worker organisation picking up the slack and advertising their services?  Anyone know any trades unions???



May 15, 2014


99.81% of HMRC’s staff are paid above the living wage.  (David Gauke told Parliament, so it must be true)

So that means that 0.19% of them are paid LESS than the living wage?

How many is that?

According to the 2013 Pocket Data guide they had 64,476 full time equivalents (in other words, there might be more people, but that’s the number of units of 36 hours a week you’d get if you added up the hours of the part time people: two part timers on 18 hours a week each = one “full time equivalent”)

0.19% x 62,276 = 122.

A couple of hundred part timers being paid less than £7.65 a week by the department that polices the minimum wage.  Paying above the minimum wage of £6.31 an hour but below the living wage isn’t illegal.  But it’s a pretty bloody poor show from a government department.

It would cost the nation £1.34 per hour (7.65-6.31) x 36 hours a week x 122 people x 52 weeks to put right.  In other words, about £300k.

HMRC’s total staff costs are £2,267.3 million (table 7 page 113)

It’s peanuts, comparatively speaking.  Make it right, for goodness sake.


Three. Probably.

January 15, 2014

A search on “open consultations” in the category “HMRC” on today tells me there are three open consultations.  I’m not sure I believe them after the shenanigans I reported on in my 7th January post (customer service tip: if someone tells you a site isn’t working, the least helpful response is “I don’t currently see any technical problems…”) but let’s roll with it.

The three are:

Real time information: legislative changes.  Opened 29th November (so why didn’t it show up when I searched on the same terms on 7th January?) and it closes on 24 January.  Incidentally, wouldn’t it be really, really helpful if you could search on closing date on  Or at least that you could tell from the search results when the consultation closes and didn’t have to click through to find out?

Onshore employment intermediaries: false self-employment.  Opened 10 December, closes 4 February.

Assistance with electronic filing of VAT returns.  Opened 20 December, closes 14 February.

So let’s start with the Real Time Information (RTI) one.  RTI, in case you didn’t already know, is the PAYE equivalent of Universal Credit – it’s the New! Improved!  All-singing!  All-dancing! method of making sure that Universal Credit will work because the government will know, from timely information from employers, who has worked where and when, so people will – perhaps, if it all works, fingers crossed – finally be able to dip in and out of paid work without screwing up their benefits for six months.

But from an employer’s viewpoint, it’s a royal pain.  You have to report payments to employees when you make them, not at the end of the month or quarter or year or whenever you can stop to draw breath.

There’s little point looking at the actual consultation, because this is one of the Finance Bill consultations – in other words, the policy has already been decided and we’re not being asked for our opinions on whether it’s a good idea or not, just for technical comments on whether or not the regulations that have been written will actually work as described.  And I don’t really feel like doing the government’s unpaid copy-editing for them this morning so we’ll skip that.

There are a few interesting things we might want to think about, though.

First of all, the TIIN (surprise!)  They aren’t publishing a TIIN with this because they’ve already published one.  In fact they’ve published two, one for the penalty regime here and one for the actual policy change.

The one for the penalty regime says that there will be no actual exchequer impact.  In fact the government says it doesn’t expect to get any money in from these penalties at all, or at least an amount which shows up as “nil” on a TIIN.  If memory serves, that’s something like a quarter of a million threshold (grateful if anyone can confirm or amend this figure please?)

That’s a good thing, of course.  The point of penalties is to change behaviour, not to collect money.  The idea is that people should make the change to RTI and get used to sending the same information they would always have sent, just a bit earlier and in a different way.  I can see two problems with that.

First of all the level of the penalty.  It needs to be a “smacked wrist” amount – enough that you know not to put your hand into the fire but not so great that your parents get done for child abuse.  So if you’re a small business with up to nine employees, it’s a hundred quid.  Enough to make you want not to incur it, but not enough (one hopes!) to bankrupt you.

But look at paragraph 16 of the condoc:

16. Regulation 67I sets the size of the late filing penalties as follows:

 £100 for schemes with 1 – 9 employees;

 £200 for schemes with 10 – 49 employees;

 £300 for schemes with 50 – 249 employees; and

 £400 for schemes with 250 or more employees.

If I have 300 employees on the average wage of £26,500 then I’m paying out over half a million in wages every month (£26,500 x 300 / 12 = 662,500).  Now, in comparison to £662,500, is £400 a “smacked wrist” or is it, well, peanuts?  An amount which it might very well be worthwhile my incurring so I can sort out my RTI submission at my own pace?

In other words, I think they got the gearing of the penalties a bit wonky.  But it’s too late now, we’re not being asked to comment on that.

Secondly, as I have commented before, there’s not a great deal of point charging “smacked wrist” penalties if you don’t actually go out and collect them, and is HMRC now committed to sending someone round to knock on the employer’s door if they incur a £100 or £400 penalty and explain to them how it arose and, more to the point, what they can do to avoid incurring another?  Otherwise I think that “exchequer effect – nil” may turn out to be, shall we say, optimistic?  Or should that be pessimistic?

And finally, what about the equalities impact?  I said in my response to the consultation on the actual policy that I was worried about the impact on “care and support” employers, which is HMRC jargon for people who have employees but who aren’t businesses.  People who employ nannies, for example, or, more worryingly, people who are given a “care budget” instead of a home help and have to get on and organise their own support package including paying their carers and working out the tax due on their pay.

In the TIIN for the actual policy it says under equalities impacts that

Care and support employers will also have the option to file RTI on paper, and those wishing to use this option will report RTI from April 2014. This date has been deferred from April 2013 in line with customer feedback, to allow more time for HMRC to thoroughly test the new paper forms and guidance with customers who will use them.

So.  We’re not publishing another TIIN.  We’re not updating the equalities impact, then?  Has there actually BEEN any testing of the impact on care and support employers?  Are they happy, or at least confident they’ll be able to comply?  Does anyone know?

Sigh.  I’d write to my MP again, but it’s Nick Clegg and I think he’s probably getting sick of hearing from me about inadequate government equality impact assessments by now.  Over to you.


A Modest Proposal

August 5, 2013

The problem with actors is that they never know whether they’re going to make any money or not – like a minimum wage worker on a zero hours contract.  The work they do is usually significantly more enjoyable and fulfilling than zero hours contract work, and there is the faint but real possibility of making lottery-winner money out of one successful contract.  After all, someone has to be Obi Wan and walk away with 2% of the Star Wars gross, even if most of us know our fate is to be the equivalent of the unfortunate stormtrooper who bashed his head on the doorway.

But think about this for a moment.  Alec Guiness died in 2000.  His estate still receives his 2%.  But should the payer deduction National Insurance before they pay it?

Yes, you may boggle.  The vexed question of actors, musicians and other entertainers comes up again in the HMRC consultation (which closes tomorrow) on “National Insurance and Self-employed Entertainers“.

What’s it about?  Well, actors are usually self employed for income tax purposes… but because they often need to claim benefits in the early stages of their careers when they are between engagements, they are employees for National Insurance purposes, so that they build up sufficient contributions to be able to claim JSA.

But, well, times change.  There’s a fundamental question about whether the royalties Sir Alec Guinness’ estate is receiving now from Star Wars is actually income from his engagement on the production (the work of acting itself) or from the intellectual property inherent in his performance.  And – not to put too fine a point on it – there’s a growing tendency for films and tv productions to be financed by special purpose vehicles (companies set up just for the duration of the production itself) and for the income stream then to come from various sources like dvd sales and downloads, and there’s an argument that making a cable tv company in Seattle, say, pay a few pence of residuals to an actor in Notting Hill under deduction of NICs is both administratively burdensome and damaging to the UK creative industries’ competitiveness.  And since the government has just introduced a tax break for the creative industries, it makes some sort of sense to make sure you’re not giving with one hand and taking away with the other…

Actually it’s rubbish.  There are two fundamental difficulties with this consultation: the difficulty of distinguishing between employment and self employment, and the difficulty in having different rules for Income Tax and National Insurance contributions.  Instead of faffing about with a piecemeal change like this one, how about doing something radical about simplicity?

So I have a Modest Proposal.

Abolish the differences between employment and self employment.

All of them.

Employment is under PAYE and self employment under SA , and the government couldn’t do without the steady cash flow it gets from PAYE receipts?  Easy!  Make PAYE a requirement of Limited Company status – if you’re a limited company, you can’t pay anyone – and I mean anyone – without deducting the tax first.  If you’re an individual, you don’t have to operate PAYE, you pay any employees gross, full stop.

Expenses are calculated differently for employed and self employed people?  Easy!  Make them the same.  Currently it’s expenses “wholly and exclusively” incurred if you’re self-employed, and “wholly, exclusively and necessarily” if you’re employed.  Abolish “necessarily”.  But if you work for a company and you are paid under PAYE you won’t have to make a tax return… unless you want to claim expenses.  And if you want to claim expenses they’d better be legitimate expenses, because HMRC will have a new squad of auditors who will examine a random selection of PAYE expense claims and you’ll be heavily penalised for, well, taking the piss.

Tax and National Insurance have different rules?  Abolish them!  Abolish the different rates of National Insurance, and instead decide what National Insurance is for.  Does it actually still pay for pensions, maternity pay, unemployment benefits and sickness pay?  Fine.  Calculate how much that came to in the last tax year, divide that by the amount of employment pay and self employment turnover there was in the last tax year, and multiply by 100.  That gives you what percentage NI will be charged at.

Hypothecate it.

Charge the NI rate that will produce the sum you need, and the tax rate that you think you can get away with (where “you” = “the government of the day”)

Employees have different rights from the self employed?  Why?  If I’m employed by a multinational and a piece of their equipment falls on me, I’ll sue them and (depending on the circumstances) they’ll pay me compensation.  If I employ a cleaning lady for a couple of hours and my stepladder breaks under her, she’ll sue me – and my household insurance will cover me (if I read the small print correctly)

Benefits?  You get jobseeker’s allowance, to be replaced by universal credit, if you lose a position as an employee, but not if you’re going through a bad patch as a self employed person.  Why?  (And, if we went with a Citizen’s Income, instead of universal credit, it would be even less of an issue.)

Now wouldn’t THAT be a simplification worth having???


(Here’s what I sent in response to the consultation, if you’re still interested…) Read the rest of this entry ?


Forty two

September 11, 2012

How many employers are there in the UK?

Well, the Federation of Small Businesses says there are about four and a half million small businesses in the UK and about a quarter of them are employers. So let’s suppose there’s one and a half million, plus another few thousand of the very largest businesses not covered by the FSB.

HMRC makes it rather more: 2,351,620 to be precise, if you add up the figures for employers on the timetable for rolling out RTI (figure 6 on page R25 of their latest annual report.)   This seems more plausible: there are nearly thirty million people in work, after all.  And HMRC ought to know: they’re the ones who are implementing radical changes to the way that all employers have to operate the PAYE system, moving them over to RTI.  So they have planned for the numbers in their table:

  1. Control group and first stage pilot.  Around 320 employers.
  2. Pilot: around 1300 employers
  3. Extended pilot: around 250,000 employers
  4. Main migration: around 2.1 million employers.

Please check my adding up, but I make that around 2,351,620 employers altogether, right?

I’m a bit worried about that.  Principally, that it’s all a bit quiet, and those two million three hundred and fifty one thousand, six hundred and twenty employers aren’t going to know about, let alone be ready for, RTI coming at them like a steam train.  After all, the government has abolished its own advertising agency and radically cut down the amount it spends on getting information to us.  And, serendipitously, it seems I’m not the only one, because Steven Timms asked David Gauke how much money HMRC had set aside to publicise the changes

The answer seems to be, well er… none, actually.

Or rather, communication is part of the overall cost of RTI, which the Minister helpfully tells us may amount to £108 million.

Do the math with me here. Counting just the small businesses covered by the FSB (and not the large ones where, so far, most of the education and support has been targeted) and not including the people who have employees but who aren’t businesses, like people with nannies and people given budgets and told to go off and employ their own careers…

The smallest number of businesses likely to be affected by RTI is, well, for the sake of the mental arithmetic let’s say that a quarter of the FSB’s four and something million amounts to ONE million employers.

On whom HMRC can spend 108 million quid?  Ok then – lets say changing HMRC’s computer, building the free software for micro business employers and doing all the other techie stuff only came to 8 million. It won’t, is my guess, but you see where I’m going with the numbers.

That gives HMRC 100 million to spend on education and communications for 1 million businesses.

A hundred quid each?

That won’t get you one person from each business going on a course, or even having a couple of phone calls with HMRC’s helpline. Its… It’s peanuts.

Divide that theoretical hundred million by the HMRC number of 2,351,620 and you get … £42.

(Well, OK, £42.52, but still.  You really couldn’t make it up.)


RTI is coming. Eep!

September 6, 2012

You may remember that, in 2010, the idea was floated that we should update the pay as you earn system.  Why should employers have to calculate how much tax to deduct from wages and salaries?  Wouldn’t it be neat if you could build some kind of machine – or, OK, some kind of app – that would work it out?  Plug that into the banks, and the employer could just transfer your whole salary to you and the bank could siphon off the bits of that money that go to HMRC using the magic machine/app.

The newspapers put paid to that one pretty quickly!  And, frankly, would you trust

  1. government IT procurement and/or
  2. banks

as far as you could throw them?

So, er, no.  Or indeed “hell no!”  But the PAYE system was still in dire need of updating – so then there was RTI.

RTI, for the uninitiated, stands for “real time information” – the “minor” change to PAYE that means employers will have to tell HMRC what they’ve paid when they pay it (and not six months or a year later).

Oh, and there’s an administrative burden “saving” to employers, because they won’t have to fill in P60s and P45s at the end of the year or when people change jobs any more; all the information will go seamlessly to HMRC when the salary payment is made.

Which, if you’re an employer with a payroll that’s computerised and a who pays via the bank, well, might actually be true.  The impact assessment thought there might be a billion quidsworth of savings.  Particularly if you don’t, er, quantify any costs!

RTI is, in fact, already here – for the small number of employers taking part in a pilot scheme.  And more employers are being added – did you know that?  And ALL employers will (or at least should) be in RTI by autumn of next year.

OK.  So far, so good.

But there’s a certain amount of, what we might politely call, “making it up as you go” involved here.  Taxation magazine pointed out on 22 August  (sorry, it’s behind a paywall) that there will be problems involved in paying

  • Casual workers
  • People receiving tips via a tronc

and various other special cases, because the RTI return has to be made at or before the time of payment.

So it’s Saturday night and you’re a pub landlady and your barmaid just called in sick and you call the two students who work odd shifts for you on standby.  They’re going to expect their wages in their hand when they go home at the end of their shifts, aren’t they?  So are you going to spend your night filling in their RTI details on your laptop so you can make them a legal payment… or are you going to go cash in hand and take your chances?

So you’re a restaurant and the tips go into a jar and the head waiter divvies them up on a Saturday night.  Is he really going to sit down and enter all the details of the payees into his laptop before he goes home?

But more worrying to me is the abolition of the Simplified Deduction scheme, which was known as the “nanny” scheme – a simpler set of deduction instructions for people who found themselves employers but who weren’t actually businesses, like people who directly employ a nanny or a cleaner (rather than paying them via an agency).  This one worries me a lot, particularly because of trend in providing services to people with special needs because of age or disability by giving them a budget and asking them to arrange their own services.  These are not people who will be immediately comfortable with running a PAYE scheme to pay for the carer who gets them out of bed in the morning.  In the equality section of the RTI TIIN published in March this year it said:

Care and support employers are individuals who employ carers to provide services to a disabled or elderly person in their home. This group of employers will join RTI from April 2013 and HMRC will offer them the option of monthly paper filing of information. They will also be able to use HMRC’s free updated Basic PAYE Tools which are available for all employers who employ nine or fewer employees, allowing them to submit RTI via the internet. HMRC has also provided funding to the Low Incomes Tax Reform Group (LITRG), to help them develop online guidance for care and support employers.

which, frankly, looks to me like an enormous exercise in Missing The Point Entirely!

In this context then you can see that I might not be too fussed about a consultation document that is concerned with penalties to be imposed for failure to comply with RTI.  In my view it’s absurdly premature to talk about penalties for failure to comply with a scheme that you’re making up as you go along.  Introduce it, work out the kinks, give it a couple of years to see what the compliance rate looks like… and THEN see what sanctions you need for the few who play fast and loose with the system.

Nevertheless, that isn’t the question being asked.  But here’s what I said in reply.

This is an individual’s response and will also be published, with commentary, on my blog, I have followed the question schedule set out on page 35 of the consultation document.

Q1. Do you have any comments on RTI and error penalties that will help us support businesses and promote timely filing under RTI?

I think it is wholly premature to be talking about penalties at this stage in the process, when there are enormous outstanding questions about how the scheme will operate at the margins. At the moment HMRC should be concentrating its resources on “support” rather than punishment. “Care and support” employers, in particular, should be exempt from penalties except in cases where a criminal penalty could be sought – in other words where the department can produce evidence of deliberate default rather than failure to understand and apply the system.

Q2. How best can we support employers in understanding their obligations under RTI and implementing the new system?

Not via penalties! An advertising campaign, dedicated support teams, face to face training and assistance – all the kind of support services that HMRC used to be able to provide via its local office network, its employer support teams and its advertising and comms team. Otherwise there’s a serious risk that micro employers will move to cash in hand payment by default.

Q3. Is there a better or simpler way, than banding by potential filing defaults, of recognising the size of the employer but also the amount and regularity of the information to be supplied under RTI?

I would make an exception for cash payments of less than £X, where X is something like the minimum wage x say 5 days and the employer is a micro business. So the pub paying its casual staff on a Saturday night has a couple of days grace to get the RTI return made without being hit with an automatic penalty (but would still be hit if the RTI information isn’t provided within say a week) – so the crisis can be covered and RTI dealt with as part of the normal working week even if it is a couple of days behind.

Q4. Are there particular adjustments that should be considered to take account of more frequent payments?

It depends really on whether your aim is to make everyone move to electronic submission and payment. Someone who is reporting on paper should be allowed to make monthly returns – but presumably you won’t want large employers to make paper returns mischievously. So this is as clear a case as I can envisage of a case where the government’s own policy to exempt micro businesses should be followed.

Q5. Should a penalty be charged as soon as a return is late or would employers prefer penalties to be charged later, perhaps each quarter?

Um – “prefer”????? What are we talking about here? If we’re working in a world where you ask people how they “prefer” to pay penalties, isn’t there some kind of presumption that penalties will be routine? And yet I thought it was clear HMRC policy that penalties would be just that – they would be PENAL – and only apply to people actively subverting or avoiding the system, not to people confused by the system or making an honest mistake?

In which case this is a nul question. You don’t get a choice about a penalty! But my preference, in my capacity as a citizen stakeholder, would be for defaulters to be charged penalties as soon as the return was late – if it’s genuinely aimed at getting them back on the right track then they need to know straight away that their actions have consequences.

Q6. Do you agree that only one late filing penalty should apply to each PAYE scheme each month, regardless of how many returns are late that month?


Q7. Should the RTI late filing penalties include a further penalty if a return is outstanding at the 6 and 12 month points?

No. You ought to be well beyond late return penalties and into corrective action by HMRC at those points.

Q8. What are the benefits and downsides of phasing the introduction of automatic late filing penalties for RTI along the lines set out above?

It’s absolutely vital that late penalties are only applied to the very largest employers and in the case of deliberate default first, and then phased in by size of payroll, not reaching the micro business employer until the system is fully mature. And arguably never reaching the “care and support” employer at all.

Q9. Should consideration be given to including a default that does not attract a penalty along any of the lines set out above?

No. A “default that does not attract a penalty” needs to exist in the system, but this is a case where HMRC shouldn’t be judge and jury but should be required to charge a penalty via a tribunal process rather than automatically. So I would exclude micro businesses from any automatic penalty regime while leaving the option of HMRC taking offensive cases via the tribunal system.

Q10. We would be grateful for comments on the detailed design options set out above. In particular, how should we encourage employers to use the nil return facility where there is no information to be returned? Is any additional incentive or sanction needed over and above the fact that a late filing penalty may be issued if an expected return is not received?

This baffles me, I’m afraid! If RTI is predicated on a return being made whenever a payment is made, how would HMRC know that any payment had been made in a “pay period”? What IS a “pay period” for these purposes?

Example: I’m thinking of taking on a casual employee to do work on my garden. I’d think about taking on a student and employing them as-and-when I have work available. So I might pay them a tenner every week for an hour’s work in the summer, but once every six weeks in winter – but then a one-off £50 when I needed some help lifting and carrying. What would be my “pay period” – or are you assuming that this kind of casual arrangement would be “cash in hand” and not touch the sides of RTI in 99% of cases?

Q11. What are the pros and cons of charging penalties for late filing and late payment at the same time?

It’s one of my pet peeves about the tax system that the two aren’t linked – it’s absolutely no use to anyone to establish a requirement to pay £x, a penalty of £y for not returning the requirement to pay £x… and then never bothering to collect either of them!

Q12. We would be grateful for comments on these models, or any combination of the elements included in the models. We would especially welcome ideas to simplify them, but which still support and encourage compliance with the RTI information obligation.

See comments above on the need to exclude micro businesses. In accordance with the government’s stated policy on the small firms, micro businesses should be exempt from regulatory change unless there’s a really good reason not to.

Q13. We welcome comments on these proposals. (This refers to the changes to the existing late payment penalty model).

It would be in keeping with what I understand of the RTI proposals, as well as a welcome simplification for everyone, if late return and late payment penalties were merged. Why doesn’t the submission of a return also trigger the submission of a payment? Employers should no longer be able to use their PAYE scheme as a cash flow tool. It’s not their money – it’s their employees’.

Q14. Should we consider charging late payment penalties quarterly?

As above, the late payment should trigger the penalty; the penalties shouldn’t be “banked”… and anyway, they should be merged with the return penalties.

Q15. Should we consider allocating employers to a quarterly stagger period for both late payment and late filing penalties under RTI?


Q16. Are there any particular easements that we should consider for new employers?

You need first to provide information, training and support. Until those are in place – and I don’t believe they are at present, and I don’t believe HMRC has the resource to provide them on a continuing basis – then no penalties should be chargeable.

Q17. Do you have any views on applying interest to late payment and late filing penalties under RTI?

I think penalties should be clear, simple and immediate. And collected. There should be no need to apply interest if you apply active collection methods.

Q18. Do you have any views on applying a late payment penalty as well as interest where further sums become due for a period?

I don’t think it’s a good idea. There should always be the possibility of drawing a line under the past and moving on. So if someone fails to make an RTI return and payment it should be clear to them they’ll be charged a proportionate penalty and it should be collected immediately – and if possible (depending on the “payment period”) before the next return and payment are due.



August 8, 2012

I’m a firm believer in the Oliver Wendell Holmes theory that “taxes are the price we pay for civilisation”.  As a retired Tax Inspector, you’d expect that.  I have no patience with tax arbitrage, tax avoidance schemes and tax evasion, and even less patience with any attempt to persuade the tax authorities to be less than even handed in collecting the right amount of tax – neither too much nor too little – from everyone, no matter how big or small their business.

Nor do I have any patience with big business whining about how much tax they pay, particularly when they include the PAYE they collect for the government but which is actually paid by their employees, or the VAT they also collect for the government but which is paid by the end user of the products they sell.

So I’m not really an impartial reader of the Taxation of Controlling Persons consultation document, which is full of soothing words about how we don’t doubt that people use personal service companies for all sorts of legitimate reasons (to which I say: name one!) but we’d rather like them to stop doing it if they’re, you know, the head of the BBC or the head of the Student Loans company or someone else who might come back to embarrass us.


Personal service companies are, essentially, one man companies.  So if I want to be head of Company Ltd but don’t want to pay tax on my gazillion pound salary, I arrange for Company Ltd to buy in management services from a little company called “Worker Ltd”.  And the fact that Worker Ltd happens to belong to me, and the services that Company Ltd buys from Worker Ltd are the managements services of, er, me…

The reason that might be good for me is that Company Ltd pays Worker Ltd the gazillion pounds it is happy to pay for my services but without deducting tax – it’s a company-to-company payment for services, rather than an employer-to-employee payment of wages.  And then, because Worker Ltd belongs to me, I can decide whether it pays me a minimum wage salary and sticks the other gazillion in the bank for later, or pays me my gazillion and pays the tax on it.  And the reason this might be good for Company Ltd is that they can pay my company for my services without having to worry about such trivialities as employer’s National Insurance, employment legislation (so there’s no sick pay or holiday pay due to me from Company Ltd, it all comes out of my Worker Ltd company) and there’s no unnecessary fuss about, say, equal opportunities or redundancy legislation if Company Ltd wants to get rid of me, they just tell Worker Ltd they don’t want any services this week, thanks.

There’s legislation to stop the Worker Co from sticking its money in the bank and saying nya nya nya to the tax authorities: it’s called IR35 (after the leaflet that introduced it) but basically it says, imagine Worker Co didn’t exist: would Company Ltd have to pay deduct PAYE before it paid me?  If so, then you ignore Worker Co and Company Ltd has to pay the PAYE.  It’s not popular and, frankly, it doesn’t always work, but at least it’s there.

Essentially this consultation is a result of the government giving up on the idea it can ever come up with a way of defining employment that will do away with this kind of disguised employment and saying simply that, if the person with the service company is in a position to control Company Ltd, then let’s apply IR35-ish rules.

Personally I think they ought to grasp the nettle and be about a million per cent more bullish about what we mean by employment/self-employment and kill off these service companies altogether.  But that’s not going to happen – the people who use service companies are too well organised an interest group, and anyway it’s a useful tax dodge for lots of rich people, and only the little people pay taxes anyway…

Ahem.  I hadn’t realised I felt quite so strongly about this one!

Anyway, here’s what I sent in response to the consultation.  As ever, feel free to adopt, adapt or otherwise recycle if you wish.

This is an individual’s response and is also online (with commentary) at my blog, I have answered your specific questions: where I have not included a question below it is because I have nothing to add. However I would additionally add that the impact assessment at page 14 of the document is so thin as to be virtually useless and as a result it does not provide the necessary information to allow the costs/benefits of this proposal to be assessed. The exemption for micro businesses is ambiguously worded and as a result the small firms impact test is incomplete. No sectoral impacts have been explored, when in fact there must be existing data on where and how this measure will impact – presumably on the civil service and on broadcasters? This should be explained in the economic impact field and would enable a more constructive engagement with the relevant sectors.

Q1 Is creating a provision which would require the engaging organisation to deduct income tax and National Insurance at source a correct and proportionate solution to this problem?

Yes, under certain circumstances. For government and quasi-government organisations (eg the head of the Student Loans organisation) I would argue that legislation is unecessary: all that is required is for the government to declare that it will not acquire services via service companies and that anyone working in a government department or quango is an employee and will be paid via PAYE. Where it is, for example, buying in IT or other services (such as the HMRC Aspire contract) then there should be clear blue water between the people providing services under that contract and government employees. Contractors would not, for example, have desk space in or security card access to government buildings. If they do, then they are employees and should be treated as such.

Q3 Are there alternative approaches that would better deliver the transparency the Government is seeking in the taxation of controlling persons than requiring them to have income tax and National Insurance deducted at source by the engaging organisation?

Yes: although a “control” provision is useful, a timing provision would also be useful. Anyone who works for the same organisation for more than (say) three months should be a deemed employee. If a genuine contract for services is in place then different staff would be able to provide the service.

Q6 Is someone who has managerial control over a significant proportion of the workforce and/or control over a significant proportion of the organisations budget the correct delineation for a ‘controlling person’?

No: what about (say) the head of a policy team in HMRC? They might control only a few staff and a small budget, but “own” a significant slice of the tax code. Similarly someone like the head of a minority channel or a commissioning editor at a broadcasting organisation might not direct a significant number of staff and the contractual arrangements might mean they did not directly control a large proportion of the budget, but by setting the policy or direction in which commissions are awarded might control a significant part of the organisation.

Q7 Should we extend controlling person to bring a larger group within the remit of this provision? If so who and why?

As above: people who control the ethos, policy or practice of the organisation should be included.

Q8 Should controlling person be narrowed so that fewer people are within its remit? If so who should be additionally excluded and why?


Q10 Is there any reason we should not exclude micro businesses, who are not part of a group structure from this provision?

In case it doesn’t quite “go without saying”, clearly it is right to exclude micro businesses who are not part of a group structure when they are the payers/engagers. Equally, it is not right to exclude micro businesses who are the payees/engagees!

Kind regards

Wendy Bradley