client has been refused HB on grounds LA does not believe he is genuinely self-employed Polish national. However, HM Revenue and Customs accepts he is self-employed, he pays class 2 national insurance and is in receipt of working tax credits. Is there a commissioner decision about the weight to be given to HMRC decisions?

Tue 14-Jul-09 02:26 PM by Kevin D

It is at least arguable that a LA can ignore HMRC's view. R(FC) 2/92 may or may not still be relevant - it can be found on the Upper Tribunal site (i.e. the old Cmmrs site).

but surely to ignore that could also be unreasonable?

I dont think R(FC)2/92 has all that much impact because the Commissioner merely held that a certificate of exemption from paying class 2 NI was not conclusive evidence of self employment.

There are a number of other decisions which on their own facts shed some light on the question of whether a person is or is not self employed, ie engaged in "work carried out in expectation of payment"

Have a look at Chief Adjudication Officer v Ellis (reported as R(IS)22/95)
also R(FC)2/90, CIS/166/1994 and CIS/1409/1996

Being engaged in "remunerative work" and being "gainfully employed" are not necessarily the same.

For example, someone earning £2,000 per week, but only working 15 hours is not in remunerative work, but is certainly in gainful employment.

R(FC) 2/92 is relevant to the extent is shows that HMRC's view of someone's employment status is not necessarily binding on other bodies. A few months ago, a LA Appeals Officer mentioned to me this CD had been relied on at a FtT and it was not rejected by the Judge.

I readily agree with Claire that HMRC's view cannot be "ignored". But if other evidence points to a different conclusion, there is nothing wrong in deciding the latter evidence outweighs HMRC's view.

Incidentally (and completely unrelated to this thread), Ellis is a very strong case to rely on in alleged "working while claiming benefit" cases - particularly where the clmt maintains no profit was ever made.

Wed 15-Jul-09 12:34 PM by stainsby

The right to reside does not depend on the person working 16hrs per week, and so other evidecen must be considered, even if receipt of working tax credit was not conclusive

Isn't the problem that registering as self-employed and paying your class 2 contributions could just be an easy way of getting R2R? I'm not saying that this has happened here but it could explain the caution. Just because someone is registered as self-employed doesn't prove they are genuinely working as self-employed/

There is another reason why some people register as self-employed. Tax Credits. Overall, single clmts in particular will often be better off on a combination of TC/HB/CTB than JSA/HB/CTB. And, it allows them to seek other work without the hassle of having to jump through the hoops for JSA.