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Coronavirus Statutory Sick Pay Rebate Scheme

The Coronavirus Statutory Sick Pay Rebate Scheme will repay employers the SSP paid to current or former employees and will be available from 26 May 2020. See here.

The scheme covers all types of employment contracts and employers will be eligible to claim if they:

Are claiming for an employee who is eligible for sick pay due to coronavirus
Had a payroll scheme that was created and started on or before 28 February 2020
Had fewer than 250 employees on 28 February 2020

The repayment will cover up to 2 weeks starting from the first qualifying day of sickness, if an employee is unable to work because they either:

have coronavirus (COVID-19) symptoms
cannot work because they are self-isolating because someone they live with has symptoms
are shielding and have a letter from the NHS or a GP telling them to stay at home for at least 12 weeks
have been notified by the NHS or public health bodies that they’ve come into contact with someone with coronavirus
they have been notified by the NHS to self-isolate before surgery

You can claim for periods of sickness starting on or after:

13 March 2020 – if your employee had coronavirus or the symptoms or is self-isolating because someone they live with has symptoms; or
16 April 2020 – if your employee was shielding because of coronavirus.
28 May 2020 – if your employee has been notified by the NHS or public health bodies that they’ve come into contact with someone with coronavirus
26 August 2020 – if your employee has been notified by the NHS to self-isolate before surgery

Employees do not have to give you a doctor’s fit note for you to make a claim. But you can ask them to give you either:

an isolation note from NHS 111 – if they are self-isolating and cannot work because of coronavirus
the NHS or GP letter telling them to stay at home for at least 12 weeks because they’re at high risk of severe illness from coronavirus
the evidence from the NHS or public health body requiring them to self-isolate

You must keep the following records in relation to a claim you make under the scheme for three years:

The reason for the employee’s absence
Details of each period the employee could not work, including start and end dates
Details of the SSP qualifying days when the employee could not work
National insurance numbers for each employee you have paid SSP to

You’ll need to print or save your state aid declaration (from your claim summary) and keep this until 31 December 2024.

The Department of Health & Social Care has published guidance for hospitals, care homes and supervisory bodies on the Mental Capacity Act 2005 (MCA) and Deprivation of Liberty Safeguards (DoLS) during the coronavirus pandemic.

In many scenarios created or affected by the pandemic, decision makers in hospitals and care homes will need to decide:

if new arrangements constitute a ‘deprivation of liberty’ (most will not), and
if the new measures do amount to a deprivation of liberty, whether a new DoLS authorisation will be required (in most cases it will not be).

If a new authorisation is required, decision makers should follow their usual DoLS processes, including those for urgent authorisations.

A summary of the key points to be taken from the guidance is outlined below:

Use of the MCA and DoLS due to Covid-19

During the pandemic, the principles of the MCA and the safeguards provided by DoLS still apply.
It may be necessary to change the usual care and treatment arrangements, for example to provide treatment for people with Covid-19, to move them to a new hospital or care home to better utilise resources or to protect them from becoming infected.
All decision makers are responsible for implementing the emergency Government health advice and any decision made under the MCA must be made in relation to a particular individual, it cannot be made in relation to groups of people.

Best interest decisions

In many cases, a best interests decision will be sufficient to provide the necessary care and treatment for a person who lacks the capacity to consent to the care and/or treatment arrangements during this emergency period.
If an individual has made a valid and applicable advance decision to refuse the treatment in question, then the relevant treatment, even for Covid-19, cannot be provided.

Delivering life-saving treatment

Where life-saving treatment is being provided in care homes or hospitals, including for the treatment of Covid-19, then the person will not be deprived of liberty as long as the treatment is the same as would normally be given to any person without a mental disorder.
The DoLS will therefore not apply to the vast majority of patients who need life-saving treatment who lack the mental capacity to consent to that treatment, including treatment to prevent the deterioration of a person with Covid-19.

The full guidance can be found here.

How do I access the Coronavirus Job Retention Scheme?

The scheme is being administered by HMRC under a new online portal that has been set up. It applies to businesses, charities, recruitment agencies, individuals who employ a nanny, administrators (where there is a reasonable likelihood of re-hiring the workers) and public authorities.

All employers with a UK payroll can apply as long as you have:

Created and started a PAYE payroll scheme on or before 28 February 2020
Enrolled for PAYE online (which can take up to 10 days)
A UK bank account.

To make a claim you will need:

The number of employees being furloughed
The start and end date of the claim
The name and National Insurance Numbers for each furloughed employee
Your employer PAYE reference number
To be registered for PAYE online
The Self-Assessment Unique Taxpayer Reference, Corporation Tax Unique Taxpayer Reference or Company Registration Number as appropriate for your entity
Your UK bank account details and sort code
Your name and contact number
Your organisation’s registered name
Your organisation’s billing address
The full amounts you are claiming for including:
- Employee wages
- Employer national insurance contributions
- Employer minimum pension contributions

For claims for those who are flexibly furloughed you will also need:

the number of usual hours the employee would work during the claim period
the hours the employee has worked or will work during this period
you will also need to keep a record of the number of furloughed hours that the employee has or will be furloughed for.

You will need the above information ready before you access the system to make a claim. You will also need to have calculated the amounts claimed in advance as the application needs to be completed in one session. You can currently save one draft of the application and it must be completed within 7 days of starting it.

The Government has issued a step-by-step guide for employers who wish to make a claim under the scheme which can be found using the link below. It contains useful information about calculating the payments claimed. You will need to register for a Government Gateway ID and password if you do not yet have one in order to access the portal.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/880099/Coronavirus_Job_Retention_Scheme_step_by_step_guide_for_employers.pdf

If you use an agent who is authorised to act for you for PAYE purposes, they will be able to make a claim on your behalf. If you use a file only agent (who files your RTI return but doesn’t act for you on any other matters) they won’t be authorised to make a claim for you and you will need to make the claim yourself. A file only agent can assist you in obtaining the information required to make a claim (listed above). If an agent makes a claim on your behalf you will need to tell them which bank account you would like the grant to be paid into.

For claims for fewer than 100 employees you will need to input the details separately for each employee. If claiming for more than 100 employees you can upload a file with the information instead. The file should include the following information for each furloughed employee: name, National Insurance number, claim period and claim amount, payroll/employee number (optional). You will also need to include details of hours normally worked, actual hours worked and hours furloughed for those who are flexibly furloughed.

The need to demonstrate the impact of coronavirus on your business is not one of the criteria listed above about who can make a claim, so the government does not appear to intend to set a specific test to determine if a business is “severely impacted by coronavirus”. You are not required to explain the impact of Coronavirus on your business when submitting your claim.

HMRC will retain the right to audit any claim retrospectively. You must keep records for 6 years including:

the amount claimed and claim period for each employee
the claim reference number
you calculations for each claim
details of hours usually worked and hours actually worked for flexibly furloughed employees.

You must tell your employees that you have made a claim under the scheme, and you must continue to pay their wages during this time.

I’m a social housing provider. What do I do if I know my tenants are flouting the social distancing guidelines?

If a tenant continues to refuse to take heed of the government’s social-distancing guidelines, for example by inviting large groups of people who do not reside there to their property, it can constitute a nuisance. One housing association successfully applied for an injunction. The injunction ordered by the Court stipulated that no persons, other than the children of the tenant, are to attend the property until the current social-distancing restrictions are lifted by the government.

A representative of the housing association highlighted the need for the current guidelines to be followed and the need for housing providers to ensure that all residents living in their communities are kept safe during this time of ‘unprecedented risk’.

This case demonstrates that flouting of the current restrictions is likely to be considered anti-social in the eyes of the courts – a point which all housing providers should bear in mind during this period. Further, it highlights the availability of an alternative remedy to the issuing of possession proceedings (in light of the government’s moratorium on evictions) to deal with anti-social behaviour during the next three months, Covid-19 related or not.

ONLINE EVENT: Contracts, managing supply chain issues and the role of directors

Hosted by NewcastleGateshead Initiative, Partners Damien Charlton and Jane Garvin discussed in this webinar contracts, managing supply chains and the role of directors, with a particular focus on cancellation of events and businesses in the tourism and hospitality sector.

You can find a recording of the webinar from NGI here.

What should be included in genuinely self-employed contractor terms?

If you consider the factors used to determine status you can include the following terms that are more in line with a self-employed relationship:

The right to provide a substitute of the contractor’s choice in the event the individual is not able to perform the services;
The ability to work for other businesses as long as doing so will not affect the services to be provided by the contractor;
The contractor should have sufficient control over how, when and where (if possible) they provide the services;
A degree of financial risk can be included for unsatisfactory work or failing to complete a project or task

We have terms that cover all of these points that can be tailored to your needs. The consultancy agreement is included in our IR35 toolkit.

Coronavirus Statutory Sick Pay Rebate Scheme

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