NIM09514 | Earnings periods: notifications issued in accordance with regulation 3(2B), SS(C)R 2001: action by network: issuing a decision

Once the BF date as in NIM09513 is reached and any enquiries satisfactorily dealt with, the notification to change the earnings period under regulation 3(2B) must be issued as a decision. As with other NIC decisions this affords both the earner and the secondary contributor an appeal right against the decision.

The main reason for the formal issue of a direction under regulation 3(2B) is that until this happens, the earnings period correctly remains as the shortest pay interval. Another important reason for this formality is the provision of tangible evidence that a notification has been given in the event of a dispute as to the liability or in the event that legal proceedings are to be taken against an employer who has failed to comply with the terms of the notification. For these reasons, oral guidance and instructions to change the earnings period are not sufficient.

Whether to issue a formal notification under regulation 3(2B) is a decision listed under regulation 155A SS(C)R 2001. Regulation 155A(2)(a) provides that the decision is whether a notice under regulation 3(2B) should be given and, if so, the terms of the notice.

The decision should be issued on form DAA1(A) and DAA1(B) and should notify the employer and employee of the decision to issue a notification and its terms. The DAA(1) and DAA(2) should be issued in accordance with the Decisions and Appeals Guide.

The decision wording should confirm that a notification is appropriate and what earnings period should be applied. The decision should also show the date from which the notification is to take effect. An example of the type of wording needed for such a decision is contained at draft decision 1 (NIM Appendix 1).

Draft letter 3 (see NIM Appendix 1) should be issued to the employer along with the DAA(1) and draft letter 4 (see NIM Appendix 1) should be issued to the employee along with the DAA(2). Both draft letters should cover any points of relevance, including a response to any issues raised by the employer if these have not already been dealt with.