NIM09505 | Earnings periods: notifications & directions: new decisions affording appeal rights

Regulation 155A of the Social Security (Contributions) Regulations 2001 (SSCR 2001) (SI 2001 No 1004)

Section 8 of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (The Transfer Act)

In October 2002 three earnings period decisions were added to those decisions that can be made under section 8(1)(m) of the Transfer Act.

The three decisions are:

• whether a notice should be given under regulation 3(2B) and, if so, the terms of such a notice - regulation 155A(2)(a)

• whether a notice given under regulation 3(2B) should cease to have effect - regulation 155A(2)(b)

• whether a direction should be given under regulation 31 and, if so, the terms of the direction - regulation 155(2)(c)

Any decision needed under regulation 30 will involve the assessment of NICs and will be covered by a liability decision given under section 8(1)(c) of the Transfer Act.

These decisions and any resulting appeal are handled in the same manner as any other NIC decision and appeal. Full guidance on issuing NIC decisions and handling appeals is provided in the Decisions and Appeals for National Insurance Contributions and Statutory Payments (DANSP).

In each of the three decisions listed above the actual decision is whether a notice or direction should be given. This means that a decision can be given which provides that:

• a notice or direction is appropriate

• a notice or direction is not appropriate

• in the case of regulation 3(2B) that a notice should cease to have effect.

In each case HMRC has a discretionary power to issue a decision where and when it thinks fit but it must issue a decision when either the earner or the secondary contributor requests one.

HMRC initiates enquiry

Where the enquiry arises internally, usually from an employer compliance review, and following investigation a notice or direction is appropriate this must be issued by means of a decision. Where, after investigation, the issue of a notice or direction is not considered appropriate a decision need not be issued.

Earner or secondary contributor initiates enquiry

Where the enquiry arises externally, either by an earner or secondary contributor, and following investigation, a notice or direction is appropriate this must be issued by means of a decision. Where the issue of a notice or direction is not considered appropriate a decision must still be issued.

Issuing decisions

Any decisions relating to an earnings period direction or notification must be issued to both the earner and the secondary contributor. Both parties have the right to appeal against the decision. A direction under regulation 31 need not be given to an earner if the officer investigating the case is for any reason unable to ascertain his or her identity or whereabouts.

Draft letters and decisions

The issue of earnings period directions and notifications must follow the standard procedures set out in NIM09510 onwards. In each case, whether the investigation originated internally or by an approach from either the earner or the secondary contributor, a letter advising of HMRC’s intention to issue a direction or notification must be issued first. This letter of intention affords the earner and secondary contributor a period during which they can dispute the appropriateness of changing the earnings period. The letter of intention can be considered the equivalent to the informal stage of providing an opinion - see the DANSP. Once the period given to dispute the intention has elapsed, and the officer remains satisfied that a direction should be issued, a NICs decision is issued. The decision carries with it the normal period during which an appeal can be made.

NIM Appendix 1 contains a series of draft letters and suggested decision wording for each of the decisions listed above. These drafts can be tailored to suit the needs of individual cases.