Whether the Social Security Contributions (Intermediaries) Regulations 2000 applied to the provision of services by an IT consultant working through his own service company.
Gordon Stuchbury (Mr S) was a consultant in software engineering
and he and his wife were the only directors and shareholders of the
company, Synaptek Ltd. On 15.12.99, Synaptek Ltd entered into an
agreement with an agency, NESCO, under which Mr S was to undertake
work for ITSA - DSS at Longbenton. The role of ITSA was
subsequently taken over by EDS although the terms of the agreement
with ITSA continued to be observed without any material difference.
The agreement of 15.12.99 included the following
features:
The Inspector issued a Section 8 Notice of Decision that the
circumstances of the arrangements between Mr S and EDS for the
performance of services from 1.5.00 to 29.10.00 were such that, had
they taken the form of a direct contract between them, Mr S would
be regarded as employed in employed earner's employment. Synaptek
Ltd appealed and that appeal was dismissed by the General
Commissioners.
The company appealed against the decision of the General
Commissioners by way of Case Stated to the High Court.
In the High Court Mr Justice Hart dismissed the company's appeal.
There were several points of interest in the judgment, which
have general application.
The identification of the "arrangements", and the
hypothesising of those arrangements into a contract directly
between the worker and the client, by the fact-finding tribunal,
the General (or Special) Commissioners, was found to be a matter of
fact, or of mixed fact and law. The significance of this point is
that the High Court will only overturn a decision of the
fact-finding tribunal if that decision was an impossible one on the
facts found by them or if the tribunal misdirected itself.
The judge has confirmed the principle established by earlier
courts that, although a person may be in business on his own
account, a particular engagement may be either a contract of
service or a contract for services. (Davies v Braithwaite; Fall v
Hitchen; Hall v Lorimer)
There was a clause in the agency-service company agreement which
stated that the client would allocate work to the service company
and that the service company would in turn allocate work to Mr S.
There was therefore an obligation on the client to provide work
during the currency of the agreement. In addition there was another
clause which provided that the contract could be terminated by any
one of the 3 parties by giving written notice of 4 weeks. The judge
said "if the contract is read as containing no obligation on the
client to provide work, it is quite impossible to see what purpose
is served by the termination provisions in Clause 8." Consequently,
where a contract contains such a clause, it is likely to lead to
the conclusion that there is the required minimum of obligation
over the whole period of the notional contract.
The Revenue's view on mutuality of obligation remains
unaltered. Basically, for there to be a global (employment)
contract there needs to be an obligation on the engager's part to
provide work, or perhaps pay a retainer during breaks, and on the
worker's part to accept work offered over the whole period. But
where there is no global contact, it is necessary to consider
whether the minimum mutuality of obligation exists for each
separate (shorter) engagement.
The substitution clause in the agreement provided that Mr S was
the one expected to provide the services but Synaptek "may with the
consent of the Client substitute alternative personnel…". Mr
Justice Hart confirmed the Revenue view of such clauses in saying,
"The effect of the contract is that, unless and until agreed
otherwise, the services do have to be performed personally by Mr
Stuchbury."
In addition he added that, in considering whether the
substitution clause was a pointer to employment or self-employment,
"the Commissioners were entitled in my judgment to regard it as
simply one fact among others and, in assessing the weight to be
given to it, to take into account the extent to which the provision
was utilised in practice." Consequently, where there has been no
substitution in practice, the Commissioners may decide that such a
substitution clause will carry little weight as a pointer to
self-employment.
The judge said that 23 authorities had been cited to the General
Commissioners. He considered that the fact that they had referred
to the principles identified by Dr Brice in the case of F S
Consulting Ltd v McCaul (set out at paragraph 44 to 51 of her
Decision) seemed to him to have been no more than an efficient and
economical way of encapsulating the relevant principles. By
implication he was approving all of those identified by Dr Brice.
In the context of IR35, paragraph 51 is important. That paragraph
indicates that in constructing the notional contract it is
necessary to have regard to substance over form.
The judge listed eight factors pointing to a contract for
services and five pointing to a contract of service. This
illustrates that the weight of those pointing to employment must
have been much greater than those pointing to self-employment. This
is in line with the judicial comments made in the case of Hall v
Lorimer (66TC349).
The judge confirmed that the General (or Special) Commissioners have the power to amend a Notice of Decision.
