Employer fails to pay N.I contributions ...

Hello once again !
Have a cl who was employed receiving pay-slips showing they were paying tax and national insurance.
However, it has transpired the employer was not paying these.
Had a look in CPAG but can’t find anything on this but can cl claim contributory benefits and argue that as far as they were aware they were paying N.I so should receive benefits ?
Thank you for any ideas ...

I did a case many years ago on the same issue. We complained to HMRC about the employer and provided evidence to the NI contributions section of deduction of contributions from pay. Due to both of these the NI section eventually treated the contributions as having been paid - I don’t know if this still applies though.

CPAG p774, under “Payment”, says you can be treated as having paid Class 1s if you haven’t been negligent or consented or connived with your employer.

Statutory reference here.  The Social Security (Contributions) Regulations 2001, as amended.

http://www.dwp.gov.uk/docs/a3-1001.pdf

Treatment for the purpose of contributory benefit of unpaid primary Class 1
contributions where no consent, connivance or negligence on the part of the primary contributor

60.—(1) If a primary Class 1 contribution payable on a primary contributor’s behalf
by a secondary contributor is not paid, and the failure to pay that contribution is
shown to the satisfaction of an officer of the Board not to have been with the
consent or connivance of, or attributable to any negligence on the part of the primary
contributor, that contribution shall be treated–

(a) for the purpose of the first contribution condition of entitlement to a
contribution-based jobseeker’s allowance or short term incapacity benefit as paid on the date on which payment is made of the earnings in respect of which the contribution is payable; and

(b) for any other purpose of entitlement to contributory benefit, as paid on the
due date.
 
(2) In paragraph (1)(a) “the first contribution condition”, in relation to a
contribution-based jobseeker’s allowance means the condition specified in section
2(1)(a) of the Jobseeker’s Act 1995

The up-to-date version of the legislation cited above is:

Social Security (Crediting, etc) Regulations 2001, SI 2001/769, as amended by the ESA (Consequential Provisions) (No 2) Regs 2008. 

It is to be found at para 2.58 (page 506) in the 2011/12 edition of Bonner’s ‘The Legislation’ Volume I.

Just to let you know that we had a very similar case.  Our client appealed the decision refusing contributory ESA and submitted wage slips and P60s confirming his income for the relevant tax years.  The Department has revised their original decision, thus lapsing the appeal, on the ground that our client had provided sufficient information to demonstrate that he had paid sufficient NI contributions and thus met the NI contribution tests.