ECH3550 - ECUM Duties: Obstructive Employer or Contractor

Where an employer or contractor

• fails or refuses to produce records or
• cannot be contacted despite reasonable effort

the review will be submitted for consideration ECH7110 or ECH7111.

The senior manager should

• check that all the correct procedures have been followed and
• decide whether the records are essential.

Where the records are not essential

• return the papers to the manager with instructions on how to proceed.

Where the records are essential

• telephone the employer or contractor if it is likely to bring about an early solution to the problem
• arrange for the issue of a Recorded Delivery letter signed by the caseworker and
• ensure the employer or contractor is visited as stated in the letter.

If the records required do not fall within the scope of

• Regulation 97 Income Tax (Pay As You Earn) Regulations 2003
• Para 26 Schedule 4 Social Security (Contributions) Regulations 2001 or
• Regulation 51/52 Income Tax (Construction Industry Scheme) Regulations 2005

Consideration should be given to calling for the documents and/or information using

• Section 20 TMA 1970 (see EM2400+)

Where the employer or contractor remains obstructive

• For an Intermediaries Legislation review (IR35), follow the guidance at ECH13305.
• For other reviews, consider whether the irregularities can be quantified with reasonable accuracy.

If the irregularities cannot be quantified with reasonable accuracy, commence penalty proceedings for failure to produce records (ECH21108)

In any cases where the records requested fall within Para 26 Schedule 4 Social Security (Contributions) Regulations 2001 TAA (Newcastle) (This text has been withheld because of exemptions in the Freedom of Information Act 2000)should be contacted for advice before proceeding with penalty proceedings.

If the irregularities can be quantified with reasonable accuracy arrange for issue of estimated Regulation 80 determinations and/or Section 8 decisions and/or Regulation 13 assessments and

The Commissioners may

• use their own information powers under Regulation 10 of the General Commissioners (Jurisdiction and Procedure) Regulations 1994 to seek information to settle the appeal or
• confirm, increase or reduce the determination, decision or assessment.

Where a penalty position is evident and the penalty is such that it is caught by Article 6 of ECHR ( ECH8026) consideration must be given to making penalty determinations ( ECH21135) at the same time and listing all appeals for the same Commissioners hearing.

Where this alternative action is not possible or appropriate, the senior manager should

telephone TAA (Newcastle) for advice (This text has been withheld because of exemptions in the Freedom of Information Act 2000)