On the 27th of February, Jim Mackey wrote a letter to all the trust and said – ‘As a result of these new rules, we anticipate that providers will need to ensure all locum, agency and bank staff are subject to PAYE and on payroll from 1 April 2017. He further stated that Providers are strongly encouraged to ensure that all staff are contractually paid via PAYE mechanisms. Where this is not the case, trusts should seek approval from NHS Improvement to pay via alternative means’.
This was wrong and NHSI acknowledged this in their surrender letter to our legal counsel.
The NHS authority is thus under a statutory duty to determine whether or not if the services were provided under a contract directly between the client and the locum doctor, the worker would be regarded for income tax purposes as an employee of the client or the holder of an office under the client, or not as the case may be. A specific duty is thus created by the new legislation, which is one that requires the public authority in question to reach a conclusion as to whether or not the condition is satisfied in each specific case.
It is obvious that the NHSI acted irrationally in the above regard. Mr Mackey’s purported decision that all locums fall within the new IR35 represent a wholesale violation of its statutory duty. It does not exist within the ambit of their statutory framework.
We sought and interim injunction and a quashing order to Jim Mackey decision. NHSI responded on 19th of May, 2017 but rather ambiguously.
On the 8th of May, we instructed Alex pebbles of Duncan Lewis solicitors and Michael Paulin with the involvement of a QC – Owain Thomas to challenge the decision of NHSI improvement to apply the IR35 scheme to all locum doctors and allied health workers
In May 26th, 2017, the NHSI granted us concessions but refused to notify the trusts. They however changed their guidance.
In May 27th, 2017, we issued instructions to our legal team to accept the new guidance in settlement of our proposed claim for judicial review. we accepted the NHSI concession and surrender.
In light of the material concession, we agree with NHSI that a claim for judicial review was unnecessary at the time but it can be brought back to the table because we reserve the right with respect to any purported and adverse decision taken by NHS providers.
However, NHSI did not communicate their concession to the trusts and hence this line of action
We have decided to inform all trust through our legal counsel about the NSHI concession and we are prepared to send out that concession letter if need be. We have released this guidance and is being sent out to all trust in the UK.
Dr Ben Itsuokor