Made |
24th November 1978 |
Laid before parliament |
6th December 1978 |
Coming into Operation |
27th December 1978 |
The Secretary of State for Social Services, in exercise of powers conferred on him by sections 2(2), 4(4) and (5) of, and paragraph 6(1)(k) of Schedule 1 to, the Social Security Act 197511 and of all other powers enabling him in that behalf, hereby makes the following regulations, which are made for the purpose only of consolidating the regulations hereby revoked and accordingly, by virtue of section 139(2) of, and paragraph 20 of Schedule 15 to, that Act, are not subject to the requirements of section 139(1) of that Act for prior reference to the National Insurance Advisory Committee:
Citation, commencement and interpretation
1.-(1) These regulations may be cited as the Social Security (Categorisation of Earners) Regulations 1978, and shall come into operation on 27th December 1978.
(2) In these regulations, unless the context otherwise requires
"the Act" means the Social Security Act 1975;
"educational establishment" includes-
(a) a place where instruction is provided in any course or part of a course designed to lead to a certificate, diploma, degree or professional qualification; or
(b) a place where instruction is provided in any course or part of a course being the same as, or substantially similar to, any such course or part of a course as is referred to in (a) above but which is not designed to lead to a certificate, diploma, degree or professional qualification;
Defn. of "entertainer" in force from 17.7.98 until 31.1.99 only. S.I. 1998/1728 refers
"entertainer" means a person who is employed as an actor, singer or musician, or in any similar performing capacity; and "entertainment" shall be construed accordingly12;"
["foreign employer" in paragraph 913 of Schedule 3 to these regulations means a person-
(a) who does not fulfil the conditions as to residence or presence in Great Britain prescribed under section 1(6)(a) of the Social Security Contributions and Benefits Act 199214; and
(b) who, if he did fulfil those conditions as to residence or presence in Great Britain referred to in (a) above, would be the secondary contributor in relation to any payment of earnings to or for the benefit of the person employed;
"host employer" in paragraph 9 of Schedule 3 to these regulations means a person having a place of business in Great Britain;]
"remuneration" in paragraph 8 of Schedule 3 to these regulations includes any payment in respect of stipend or salary and excludes-
(a) any payment disregarded or, as the case may be, deducted from the amount of a person's earnings by virtue of regulations made under section 3(3) of the Act; or
(b) any specific and distinct payment made towards the maintenance or education of a dependant of the person receiving the payment;
and other expressions have the same meaning as in the Act.
(3) Any reference in these regulations to any provision made by or contained in any enactment or instrument shall, except in so far as the context otherwise requires, be construed as including a reference to that provision as amended or extended by any enactment or instrument, and as including a reference to any provision which it re-enacts or replaces with or without modification.
(4) The rules for the construction of Acts of Parliament contained in the Interpretation Act 188915 shall apply for the purposes of the interpretation of these regulations as they apply for the purposes of the interpretation of an Act of Parliament.
Treatment of earners in one category of earners as falling within another category and disregard of employments
2.-(1) For the purposes of the Act an earner in one category of earners shall be treated as falling within another category in accordance with the following provisions of this regulation.
(2) Subject to the provisions of paragraph (4) of this regulation, every earner shall, in respect of any employment described in any paragraph in column (A) of Part I of Schedule 1 to these regulations, be treated as falling within the category of an employee earner in so far as he is gainfully employed in such employment and is not a person specified in the corresponding paragraph in column (B ) of that Part, notwithstanding that the employment is not under a contract of service, or in an office (including elective office) with emoluments chargeable to income tax under Schedule E.
(3) Subject to the provisions of paragraph (4) of this regulation, every earner shall, in respect of any employment described in any paragraph in column (A) of Part II of the said Schedule 1, be treated as falling within the category of a self- employed earner in so far as he is gainfully employed in such employment and is not a person specified in the corresponding paragraph in column (b) of that Part, notwithstanding that the employment is under a contract of service, or in an office (including elective office) with emoluments chargeable to income tax under Schedule E.
(4) Every employment described in any paragraph in column (A) of Part III of the said Schedule 1 shall, in relation to liability for contributions otherwise arising from employment of that description, be disregarded, except in so far as it is employment of a person specified in the corresponding paragraph in column (B) of that Part.
Employments treated as continuing
3. For the purposes of the Act with respect to the computation, collection and recovery of, and otherwise with respect to, contributions (other than Class 4 contributions which under section 9 of the Act are to be recovered by the Inland Revenue), the employment of a person shall be treated as continuing in the circumstances specified in Schedule 2 to these regulations.
Special provisions with respect to persons declared by the High Court to be persons falling within a particular category of earners
4.-(1) Where, under the provisions of the Act relating to references and appeals to the High Court16, the High Court decides any question whether in respect of any employment a person is an earner and, if so, as the category of earners in which he is to be included, and that decision is inconsistent with some previous determination of a question by the Secretary of State17, then, if the Secretary of State is satisfied that contributions appropriate to another category of earners have been paid by or in respect of any person by reason of that determination or in the reasonable belief that that determination was applicable, the Secretary of State may, if it appears to him that it would be in the interests of the person by or in respect of whom such contributions have been paid, or of any claimant or beneficiary by virtue of that person's contributions, so to do, direct that that person shall be treated as though he had been included in the category of earners corresponding to the contributions paid during the period for which contributions appropriate to that other category were so paid before the date on which the decision of the High Court was given, and, if such a direction is given, that person shall be deemed to have been included in that category accordingly for such period.
(2) Where the Secretary of State, on review under section 96(1) of the Act, has revised a determination of a question previously given by him, the provisions of this regulation shall apply with the necessary modifications in the same manner as they apply where the High Court has given a decision inconsistent with a determination previously given by the Secretary of State.
(3) In the application of this regulation to Scotland, for any reference to the High Court, there shall be substituted a reference to the Court of Session18.
Persons to be treated as secondary contributors
5. For the purposes of section 4 of the Act (Class 1 contributions), in relation to any payment of earnings to or for the benefit of an employed earner in any employment described in any paragraph in column (A) of Schedule 3 to these regulations, the person specified in the corresponding paragraph in column (B) of that Schedule shall be treated as the secondary Class 1 contributor in relation to that employed earner.
Revocation and general savings
6.-(1) The regulations specified in column (1) of Schedule 4 to these regulations are hereby revoked to the extent mentioned in column (3) of that Schedule.
(2) Anything whatsoever done under or by virtue of any regulation revoked by these regulations shall be deemed to have been done under or by virtue of the corresponding provision of these regulations and anything whatsoever begun under any such regulation may be continued under these regulations as if begun thereunder.
David Ennals | |
24th November 1978 |
Secretary of State for Social Services |
SCHEDULE 1
Regulation 2
Part 1
|
Employment in respect of which, subject to the provisions of regulation 2 and to the exceptions in column (b) of this Part, earners are treated as falling within the category of employed earner |
Persons excepted from the operation of column (A) |
[1. Employment - (a)as an office cleaner or as an operative in any similar capacity in any premises other than those used as a private dwelling-house; or(b)as a cleaner of any telephone apparatus and associated fixtures, other than of apparatus and fixtures in premises used as a private dwelling-house.19] |
1. None |
2. Employment (not being employment in respect of which a person is, under the provisions of paragraph 1, 3 or 5 of this Schedule, treated as falling within the category of an employed earner) in which the person employed renders, or is under obligation to render, personal service and is subject to supervision, direction or control, or to the right of supervision, direction or control, as to the manner of the rendering of such service and where the person employed is supplied by or through some third person (including, in the case of a body of persons unincorporate, a body of which the person employed is a member) and - (a) where earnings for such service are paid by or through, or on the basis of accounts submitted by, that third person or in accordance with arrangements made with that third person; or (b) where payments, other than to the person employed, are made by way of fees, commission or other payments of like nature which relate to the continued employment in that employment of the person employed. |
2. Any person in employment described in paragraph 2 in column (A)-(a) where the service of the person employed is rendered in his own home or on other premises not under the control or management of the person to whom the person employed is supplied (except where such other premises are premises at which the person employed is required, by reason of the nature of the service, to render service); or (b) who is employed as an [actor, singer, musician or other20] entertainer or as a fashion, photographic or artist's model; or (c) in a case where earnings are not paid by or through, or on the basis of accounts submitted by, that third person - (i) where the person employed has obtained that employment through a third person as part of that third person's activities in which persons seeking employment are introduced to persons requiring their services; and (ii) where as a result of such an introduction the person employed and the person to whom he has been introduced have entered into a contract with each other for the rendering of such service; and |
(iii) where only the person employed and the person to whom he has been introduced have a direct financial interest in the continued employment in that employment of the person employed. | |
3. Employment of a person by his or her spouse for the purposes of the spouse's employment. |
3. None. |
4. Employment(not being employment described in paragraph 2 in column (A) of this Schedule) as a lecturer, teacher, instructor or in any similar capacity in an educational establishment by any person providing education being employment in which-(a) [21](b) the person employed gives the instruction in the presence of the persons to whom the instruction is given except where the employment is in the Open University, and (c) the earnings in respect of the employment are paid by, or on behalf of, the person providing the education. |
[4. Any person in employment described in paragraph 4 in column (A) where - (a) the person employed has agreed, prior to giving the instruction, to give it on not more than three days in three consecutive months; or (b) the instruction is given as public lectures22.] |
5.Employment as a minister of religion, not being employment under a contract of service or in an office with emoluments chargeable to income tax under Schedule E. |
5.Any person in employment described in paragraph 5 of column (A) whose remuneration in respect of that employment (disregarding any payment in kind) does not consist wholly or mainly of stipend or salary. |
Para 5A in force from 17.7.98. S.I. 1998/1728 and 1999/3 refer. 5A. Employment as an entertainer, not being employment under a contract of service or in an office with emoluments chargeable to income tax under Schedule E. |
5A.Any person in employment described in paragraph 5A in column (A) whose remuneration in respect of that employment (disregarding any payment in kind) does not consist wholly or mainly of salary. |
Part II
Column (A)
|
Column (B)
|
6. Employment (not being employment described in paragraph 2 in column (A) of this Schedule) by any person responsible for the conduct or administration of any examination leading to any certificate, diploma, degree or professional qualification - (a) as an examiner, moderator or invigilator or in any similar capacity; or (b) in which the person employed is engaged to set questions or tests for any such examination, under a contract where the whole of the work to be performed is to be performed in less than twelve months. |
6. None. |
PART III
|
Employment in respect of which, subject to the exceptions in column (B) of this Part, are to be disregarded |
Column (B)
|
7. Employment by the father, mother, 7. None. grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister of the person employed, in so far as the employment - (a) is employment in a private dwelling-house in which both the person employed and the employer reside; and (b) is not employment for the purposes of any trade or business carried on there by the employer. |
7. None. |
8. Employment (whether or not under a 8. None. contract of service) of a person by his or her spouse otherwise than for the purposes of the spouse's employment. |
8. None. |
9. Any employment or employments as a 9. None. self-employed earner (including any employment in respect of which a person is, under these regulations, treated as falling within the category of a self-employed earner) where the earner is not ordinarily employed in such employment or employments. |
9. None |
10. Employment for the purpose of any election or referendum authorised by Act of Parliament - (a) as a returning officer or acting returning officer; or (b) as a Chief Counting Officer or counting officer; or (c) of any person by any officer referred to in (a) or (b) above. |
10. None |
[11. Employment:(a) as a member of the naval, military or air forces of a country to which a provision of the Visiting Forces Act 195223 applies by virtue of section 1 thereof; (b) as a civilian by any such force. |
11. Any employment described in paragraph 11(b) in column (A) of a person who is ordinarily resident in the United Kingdom. |
12. Employment as a member of any international headquarters or defence organisation designated under section 1 of the International Headquarters and Defence Organisations Act 194624. |
12. Any employment described in paragraph 12 in Column (A) of a person who is - (a) a serving member of the regular naval, military or air forces of the Crown raised in the United Kingdom, and any officer of the Brigade of Gurkhas holding Her Majesty's commission who is not a Queen's Gurkha officer; or (b) a civilian ordinarily resident in the United Kingdom who is not a member of a [scheme providing a pension, lump sum, gratuity or like benefit on cessation of the employment which is25] established under arrangements made by the international headquarters or, as the case may be, defence organisation of which he is a member.26] |
[13. Employment (other than employment described in paragraph 12 of Column (A) of this Schedule) as a Queen's Gurkha officer or as any other member of the Brigade of Gurkhas of a person who was recruited for that Brigade in Nepal. |
13. None.27] |
SCHEDULE 2
Regulation 3
CIRCUMSTANCES IN WHICH EMPLOYMENT IS TREATED AS CONTINUING
Where a person is employed as a self-employed earner or in an employment in respect of which he is, under these regulations, treated as falling within the category of a self-employed earner, the employment shall in either case be treated as continuing unless and until he is no longer ordinarily employed in that employment.
SCHEDULE 3
Regulation 5
EMPLOYMENTS IN RESPECT OF WHICH PERSONS ARE TREATED AS SECONDARY CLASS 1 CONTRIBUTORS
Employments |
Column (B) Persons treated as secondary Class 1 contributors |
[1. Employment - (a) as an office cleaner or as an operative in any similar capacity in any premises other than those used as a private dwelling-house; or (b) as a cleaner of any telephone apparatus and associated fixtures, other than of apparatus and fixtures in premises used as a private dwelling-house.28] |
1.(a) Where the person employed is supplied by, or through the agency of, some third person and receives his remuneration from, or through the agency of, that third person, that third person; (b) in any other case, except where the employment is also one described in paragraph 4 in column (A) of this Schedule, the person with whom the person employed contracted to do the work.
|
2. Employment, whether or not under a contract of service (not being employment described in paragraph 2 in column (B) of Schedule 1 to these regulations or an employment to which paragraph 1, 4, 5, 7 or 8 of this Schedule applies) in which the person employed renders, or is under an obligation to render, personal service and is subject to supervision, direction or control, or to the right of supervision, direction or control, as to the manner of the rendering of such service and where the person employed is supplied by or through some third person (including, in the case of a body of persons unincorporate, a body of which the person employed is a member) and - (a) where earnings for such service are paid by or through, or on the basis of accounts submitted by, that third person or in accordance with arrangements made with that third person; or (b) where payments, other than to the person employed, are made by way of fees, commission or other payments of like nature which relate to the continued employment in that employment of the person employed. |
2.(a) In England and Wales where the person employed is supplies by or through the agency of a body of persons unincorporate and the per- son employed is a member of that body, the other members of that body, and, in any other case, the third person by whom or through whose agency the person employed is supplied; (b) in Scotland, the third person by whom or through whose agency the person employed is supplied; (c) where the other members of the body or the third person specified in sub-paragraph (a) or, as the case may be, the third person specified in sub-paragraph (b) of this paragraph do not fulfil the conditions as to residence or presence in Great Britain prescribed in [regulation 119(1)(b) of the Social Security (Contributions) Regulations 197929 30 ], the person to whom the person employed is supplied (and in that case sub-paragraph (a) or, as the case may be, sub-paragraph (b) shall not apply). |
3. Employment of a person by his or her spouse for the purposes of the spouse's employment. |
3. The spouse. |
4. Employment (not being employment in respect of which a secondary contributor, in any particular case, is prescribed in paragraph 1(a) in column (B) of this Schedule, and not being employment described in paragraph 2 in column (A) of that Schedule) by a company, being a company within the meaning of the Companies Act 194831 and in voluntary liquidation but carrying on business under a liquidator. |
4. The person who at the time of the employment holds the office of liquidator. |
5. Employment in chambers as a barrister's clerk. |
5. The head of chambers. |
6. Employment (not being employment described in paragraph 4 in column (B) of Schedule 1 to these regulations or an employment which paragraph 2 of this Schedule applies) as a lecturer, teacher, instructor or in any similar capacity in an educational establishment by any person providing education being employment in which - (a) [32](b) the person employed gives the instruction in the presence of the persons to whom the instruction is given except where the employment is in the Open University; and (c) the earnings in respect of the employment are paid by, or on behalf of, the person providing the education. |
6. The person providing the education. |
7. Employment as a minister of the Church of England, not being employment under a contract of service. |
7. The Church Commissioners for England. |
8. Employment as a minister of religion not being employment - (a) as a minister of the Church of England; or (b) under a contract of service; or (c) described in paragraph 5 in column (B) of Schedule 1 to these regulations. |
8.(a) Where the remuneration in respect of the employment is paid from one fund, the person responsible for the administration of that fund; (b) where the remuneration in respect of the employment is paid from more than one fund and - (i) remuneration is also paid from one of those funds to other ministers of religion, the person responsible for the administration of that fund;(ii) remuneration is also paid from two or more of those funds to other ministers of religion, the person responsible for the administration of the fund from which remuneration is paid to the greatest number of ministers of religion who carry out their duties in Great Britain;(iii) no person falls to be treated as a secondary contributor by virtue of sub-paragraph (b)(i) or (ii) of this paragraph, the person responsible for the ad- ministration of the fund from which the minister of religion first receives a payment of remuneration in the tax year. |
33[9. Employment by a foreign employer where - (a) in pursuance of that employment the personal service of the person employed is made available to a host employer; and (b) the personal service is rendered for the purposes of the business of that host employer; and (c) that personal service for the host employer begins on or after 6th April 1994. 34] |
9. The host employer to whom the personal service of the person employed is made available. |
Para. 10 in force from 17.7.98 until 31.1.99 only. S.I. 1998/1728 refers. 10. Employment as an entertainer (not being employment under a contract of service or in an office with emoluments chargeable to income tax under Schedule E) except where the earner is a person to whom paragraph 5A in column (B) of Schedule 1 to these Regulations applies. |
10.The person who has engaged the entertainer under a contract for services for the provision of the entertainment which constitutes that employment". |
SCHEDULE 4
Regulation 6(1)
REVOCATIONS
See 2000 edition for Categorisation of Earners regulations revoked.
EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations are made for the purpose only of consolidating the Regulations hereby revoked.
They provide for persons in employments of prescribed descriptions to be treated for the purposes of the Social Security Act 1975 as falling within another category of earners. The Regulations also provide for other employments of prescribed descriptions to be disregarded (regulation 2 and Schedule 1).
Provision is also made for the circumstances in which employment as a self- employed earner is treated as continuing (regulation 3 and Schedule 2).
Provision is also made for the special categorisation of a person following a decision of the High Court or a revised decision of the Secretary of State so as to enable the original determination concerning that person's category to stand where this would be in the interests of the person concerned (regulation 4).
The Regulations provide for prescribed persons to be treated for the purposes of the Social Security Act 1975 as the secondary Class 12 contributor in respect of persons in specified employments (regulation 5 and Schedule 3).
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