What is the NICE guidance around clinical decision-making?

IR35 is an anti-tax avoidance regime which is intended to tackle (in HMRC’s view) the long standing issue of individual contractors providing their services or labour via an intermediary – which is usually a personal service company (referred to as a PSC). We’ll talk about PSCs here, but there are other types of intermediaries that are caught.

HMRC’s view is that this arrangement is often considered to be disguised employment and therefore a tax-avoidance arrangement.

So IR35 is essentially a test of employment status – and if, once you apply the test, the contractor should be an employee, they should then be taxed as an employee.

Crucially the phrase “force majeure” has no specific meaning in English law. As a result, there is scope for complex legal argument, including as to whether the effects of the coronavirus outbreak can amount to force majeure in the first place. If the coronavirus crisis deepens, force majeure provisions could become relevant in the following ways:

• suppliers to your business might seek to invoke force majeure
• you may need to invoke force majeure under your own contracts

Each of these will need careful analysis of the relevant contract against the applicable factual background. Unfortunately, the position is unlikely to be clear cut.

Conduct risk assessments! Your RA must cover every foreseeable risk arising from a return to the workplace, including the impact of reduced staff levels and any operational/administrative changes necessary to ensure social distancing.

Appropriate steps should be taken to manage and mitigate identified risks. Where this is not possible, businesses need to decide whether certain activities are necessary for the business to operate or if they can be temporarily put on hold.
Keep a close eye on the comprehensive Government guidance: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

In particular focus on social distancing and workplace health measures. This guidance will evolve over time and you will need to be sure that your organisation is sticking to it AND reviewing and updating its risk assessment.

No one factor will determine status and the outcomes will differ depending on the nature of the work being carried out and the business of the end user client.

When you have carried out an assessment based on the relevant factors you can either get in touch with us to discuss further, check your answers against HMRC’s CEST tool or do both before making a final determination.

The first point to note is that it is the position as at 14 February 2022 which is relevant, as whether or not a lease is a ‘qualifying lease’ for the purposes of recovering costs under the Building Safety Act was effectively frozen at that time.

If a leaseholder owned more than three properties in the UK (and the property in question was not their principal home) at that time, then the lease will not be a qualifying lease. The protections under the Act which prevent or restrict the landlord’s ability to recover the cost of remedial works through the service charge will not therefore apply to that lease (save potentially for the provision that costs cannot be recovered where the landlord is responsible for the defects, which does not expressly refer to qualifying leases).

The lack of a searchable database to assess how many properties a leaseholder has in the UK is however one of the difficulties to be resolved in this regard, as there is currently no way of searching the Land Registry to obtain a list of properties owned by one individual. The guidance appears to rely on the leaseholder completing the leaseholder deed of certificate being open and honest in this regard, and that deed of certificate being passed onto subsequent owners. Making false representations or failing to disclose required information in the deed of certificate may be a criminal offence, although reliance on this to discourage mis-reporting is clearly less satisfactory than having a searchable register.