How are the Courts applying the new guidance?

Individual contractors who are not operating via an intermediary (eg sole traders) do not need to be assessed under IR35. However, you will always have the risk with those individuals that there is no intermediary – therefore if their tax status is wrong, HMRC are very likely to consider that responsibility for this would fall on the hiring company in any event.

• The Pensions Regulator has published regularly-updated guidance for employers.
• It will take “a proportionate and risk-based approach towards enforcement decisions … with the aim of supporting both employers and savers”. In other words, the law remains the same, but the Regulator will show restraint in enforcement against breaches.

To be eligible for CBILS, the British Business Bank has confirmed that businesses should be able to answer YES to the following points:

• Your application must be for business purposes
• You must be a UK-based SME with an annual turnover of up to £45m. This includes sole traders, freelances, body corporates, limited partnerships and limited liability partnerships. For sole traders to be eligible it is expected that sole traders will need to have a business account with its funders and not be operating via a personal account
• Your business must generate more than 50% of its turnover from trading activity
• Your CBILS-backed facility will be used to support primarily trading in the UK
• You wish to borrow up to a maximum of £5m.

Businesses meeting these criteria from all sectors can apply save for Banks, Building Societies, Insurers and Reinsurers (but not insurance brokers), the public sector including state-funded primary and secondary schools, employer, professional, religious or political membership organisation or trade unions which are not eligible.

Your borrowing proposals must be considered viable by the relevant lender under normal circumstances aside from the Covid-19 outbreak, and the lender believes the provision of finance will enable the business to trade out of any short-to-medium term difficulty. Lending decisions are delegated to the accredited lenders and lenders will need further information to confirm eligibility.

The eligibility criteria for CBILS does not require lenders to take into account other forms of Government support that SME’s may already be benefiting from, most notably business rate relief.

We understand that ownership structure is not taken into account when confirming eligibility and that businesses back by a PE funder or a subsidiary of an overseas entity can be eligible if it meets the other criteria.

An update on eligibility – 3 April 2020

Previously, for facilities above £250,000, the lender must establish a lack or absence of security prior to businesses using the Scheme. The requirement for insufficient collateral has been removed allowing those SMEs who are considered to have sufficient collateral to access the Scheme. We would expect that where security is available, a lender will seek to take security over the relevant assets.

Any hearings attended in person will need to be approved by the judge hearing the matter, if necessary, in consultation with the regional lead COP judge. Such requests are highly unlikely to be granted during COVID-19 unless there is a genuine urgency. However, it is deemed to be appropriate matters are likely to be adjourned on the basis that a remote hearing is not possible and a hearing in person is not safe or possible.

It would be prudent to take legal advice early in relation to any issue you foresee in performing a contract. This will allow you to:

• Ensure that initial contact with your counterparty is framed in the correct way
• Ensure that any variations are fully documented so that both parties are fully protected