ESM9040 | Basic principles: off-payroll working: information to be provided by clients and consequences of failure

Section 61T Chapter 10 ITEPA 2003

Regulation 20 The Social Security (Miscellaneous Amendments No.2) Regulations 2017

If the conditions at ESM9000 have been met the public authority must make a determination as to whether the worker would be regarded as an employee if the services were provided under a contract directly between that worker and the public authority rather than through an intermediary.

If the contract is entered into on or after 6 April 2017 the duty to inform the person must be complied with on or before the time of entry into the contract, or if the services begin to be performed at a later time, before that later time.

If the contract is entered into before 6 April 2017 then the duty must be complied with on or before the date of the first payment made under the contract on or after 6 April 2017.

If the information has been given by the client they must, upon a written request by the person who they directly contracted with, provide the person with a written response to any questions raised by the person about the client’s reasons for reaching the conclusion in the information. That written response must be provided before the end of 31 days, beginning with the day the request for it is received by the client.

If the client fails to (a) comply with their duty to provide a view within the time allowed or (b) fails to provide a written response about their reasons for reaching their conclusion within the time allowed or (c) complies with (a) but fails to take reasonable care in reaching that view then the client becomes the fee-payer and assumes responsibility for any and all PAYE / NICs due.

Whilst ESM10014 refers to Chapter 10 rules coming into force from 6 April 2021, it explores the concept of reasonable care and the principles set out apply equally to the rules that came into force on 6 April 2017.