Stephen Morris
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Is the cost of a CRB check for a "self-employed" teacher tax deductible

Is the cost of a CRB check for a "self-employed...

I recently did some teaching work in an FE college. Belatedly, the agency which solicited my services issued me with a contract that says I am self-employed. I disagree that I am self - employed as the work I did on this temporary contract is almost identical to the work I did when I was employed full time to teach in FE colleges. I have asked HMRC for a ruling on my status but their reply does not provide an answer despite me setting out the circumstances and a copy of the terms and agreement upon which the agency engaged me.

To undertake the college work I had to obtain an enhanced CRB check. The legislation demands this. Also, the CRB check is not portable - it applies soley for the college and role I occupied. Hence, it seems to me, the CRB check is necessarily, wholly and exclusively incurred in the course of my business. HMRC says it will not allow me the cost of the CRB check because it was not incurred in the performancy of (my) duties. Is this a correct reading of the legislation?

The agency also deducted so-called indemnity insurance from my gross pay. The deduction is a percentage of my gross pay so that I only pay the indemnity insurance when I am earning. HMRC says this cost may be allowable and that I should seek advice. Again, I had no choice about the matter - I had to pay it. It is a wholly, exclusively and necessarily incurred cost. I would not be permitted to undertake the work unless I had cover. Surely, because it is a variable cost, ie it increases in sympathy with my earnings (or with time spent teaching), the cost of this so-called indemnity insurance must unambiguously be incurred in the performance of my duties?. Could someone confirm this is tax deductible please?

One final point, both of these costs were incurred wholly, exclusively and necessarily in relation to the work. My understanding is, therefore, that it does not matter whether I am an employee or self-employed for these costs to be tax deductible. However, there is the possibility that I may be a "worker" which may mean I am neither employee or self-employed. If it is possible for individuals to be neither then there is a chance that the legislation applying to employees and self employed does not apply in this case. Can anyone advise please?


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03rd May 2011 21:26

Self-Employed etc.

It is up to the contractor/employer if the contract you are working on is one of employment or self employment (workers don't come into this bit) so you don't have a choice and that is the likely answer you had from HMRC.

For the self-employed any costs for training etc proir to starting work are not allowable as they weren't incurred during the course of self-employment. Capital Assets are treated differently because they will be used in your work. As the Insurance was incurred while you are working then it is allowable. If you are on PAYE then you will find most expenses not allowable although incurred in your work. There are certain expenses allowed for certain trades, but these are normally fixed.

The term "worker" is a Euro blip and basically says that although self-employed you still have certain rights eg. holiday pay. So no you can't be a "worker" and nothing else.

Most self-employed use Accountants to lead them through the minefield as tax for most is "taxing".

This is a very general reply as there are many permutations.

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03rd May 2011 22:21

Contracts are agreements

Thank you for your reply.

You say it is up to the contracting party to decide whether I have employed or self employed status. Either way there is a contract, which implies agreement between the parties. Agreements are not unilateral declarations or impositions of one party's will over another's. I do not agree that I was self employed whatever the terms and conditions, which were only supplied to me after I had commenced and following my insistence, said.  Whether I am self employed or employed is a matter of fact, not a matter of choice of either myself or the agency. I resigned shortly after receiving the terms and conditions because I did not agree to the terms.

You say HMRC are loathe to allow deductions against tax for employed people. I don't see why and I don't see how they much have choice if the criteria set by legislation is met. Expenditure must be wholly, necessarily, and exclusively incurred in the performance of my duties for it be allowable against employment income. If HMRC is saying that the cost of my CRB check, albeit it being a business expense, was not incurred in the course of performing my employment duties and hence is not allowable then, if that criteria holds, there are other costs which do meet that criteria such as paper costs, a fair allocation of my computing costs, etc. I had not planned to claim for these but I will now.

Income tax should not be a minefield. It should be feasible for the average individual to sort his or her own tax affairs out without recourse to an accountant.



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04th May 2011 10:08


most Accountants will agree with you but we are bound by what Tribunals and the Courts decide.

A classic example always used by HMRC is the case of a Barrister trying to claim the cost of the clothes that are only used for court appearance wholly and exclusively for her work. Not allowable as she had to wear something. Overalls however are allowable because they are protective clothing.

The employment status IS a matter of fact which is decided by the contractor and, of course, can be challenged by HMRC.

You decided that the terms of the contract didn't suit so you resigned.

No, Tax shouldn't be a minefield but IT IS. Just read all the comments on this site and you will realise just how ludicrous some of the rules and regulations taht we have to deal with are. 

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04th May 2011 11:33

Enduring Benefit

The claim for costs of a CRB check may have been rejected because they think it is in the nature of expenditure putting you in a position to trade. If you were self employed then I would challenge this. If you do not accept that you were self employed in this engagement then you will probably have no success with any expense claims (with the probable exception of the insurance).

If you do accept that you were self employed in this engagement then you will presumably have a problem with late registration as self employed.

FWIW I don't think it is very likely that your status in this engaement was that of a self employed person, but I would need to see the contract and to discuss with you the way in which it was implemented before being able to venture an opinion.


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04th May 2011 11:41

Thanks John

Thanks for responding and for your advice. I have spoken to the Compliance officer from HMRC. He confirmed that I fall between two stalls - I am an employee for tax purposes and maybe self employed for employment legislation purposes! He was unable to comment on the latter, he said.

However, substantively, I believe I am an employee for employment legislation purposes because the terms and conditions of the enagagement were not negotiated - they were imposed without my prior agreement. One of the joys of self employment is that the terms of engagement are negotiated and agreed by both parties.

Anyway, I am going to submit a tax return and will claim all those expenses that I incurred necessarily, wholly and exclusively in the course of performing my duties. HMRC can then decline my claim for these expenses if they wish but, although only trivial amounts, I will appeal on principle.

I must say, the whole thing stinks of bad government where agency workers are denied employment rights and simulataneously denied the tax benefits of self employment despite suffering the same risks. What was it the last government said about "joined-up government"? Yeah, right. Whatever.

Dear Gordon Brown, please go away and die.



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04th May 2011 12:41

Thanks Phil

Thanks for your comments.

I believe HMRC's position is that it is irrelevant whether I am self-employed or employed because the Agency Regulations apply and require that I am taxed and NI'd as an employee. So even if I were self-employed I must still pay income tax and NI under PAYE. 

As for falling foul of the 3 month notification window for self-employment this won't happen. Firstly, I do not accept that I am self employed so there is no need to notify. Secondly, as far as HMRC is concerned, I am an employee because their concern is about my status from the point of view of tax, not from the point of view of employment legislation. Thirdly, I sent a copy of the terms of engagement, which purport to show that I am self-employed, within the notification window when I queried my employment status with HMRC. If push comes to shove, and HMRC make an issue of alleged late notification, then I shall cite this correspondence as evidence of notification.

I believe HMRC will be obliged to allow my paper and computing costs as being necessarily, wholly, and exclusively incurred in the course of performing my duties. This is because teaching in FE requires lesson preparation to take place at home. It is not possible to do the job unless the lecturer works at home preparing sessions. Again, HMRC can decline my claims but I will appeal. All of the criteria for deductibility are met and so I don't think HMRC is legally empowered to deny my claims, even though I am an employee from their point of view, and the criteria are stricter than for self employment.

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04th May 2011 13:12

With respect, Stephen,

a negotiated agreed contract between you and the employer/contractor does not mean self-employment. It is what the e/c decides and then, for protection from HMRC challenges, words the contract so it becomes a "contract for services" rather than a "service contract". These days most agencies insist that you trade through a Limited company to put the onus back on to yourself via a wonderful piece of Bownism called IR35.

As I said previously there are many permutations.

Depending on your earnings for the year it is quite likely that your Tax Return will sail through without challenge.

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04th May 2011 13:46

Teensy Bit Off Topic

And I apologise it is off topic - I have been reading this with great interest.  This post will doubtless be a bit rambly - I am typing as I am thinking!

Firstly - at our school whether you be peripitetic music (not employed by the school), a teacher, a parent volunteer etc, the school obtains the CRB at their expense.  As you say it is not transferable and were I you I would be arguing they cannot take you on legislatively without it.  Stick in an expense claim to the college!

Secondly - teachers' pensions...... I know I have to put everyone - however short the time they were with us on the payroll and IN teachers pensions scheme.  The TP part, as I am sure you know, is compulsorary (worse luck for us!).  Not sure how you can be paying PAYE if you weren't on the payroll.  Then I am easily confused!  I would be interested to hear Teachers Pensions view.

Thirdly - if your hours were set by the 'employer' or client, and exactly what you were required to do was set up and not negotiable I don't see how you could be self employed really... there is no way I can see that you would not be a worker and therefore enjoy the rights of a worker.

Are you in a Union?  They might be a good source of advice.

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04th May 2011 14:27

Negotiated v Imposed Terms

Hi John

I think it is true to say that when deciding whether a contract is 'for services' or 'of service' the manner in which the terms and conditions were arrived at is relevant and persuasive, even if not determinative. Generally speaking, a master-servant relationship exists between employer and employee. One would therefore expect the terms to have been imposed upon a subordinate party by a contracting party under a contract of service. Conversely, where a contract for services exists one would expect the terms of the agreement to reflect negotiations between the two parties. In other words there is more equality between the parties. It is likely that a self employed person will have at least quoted a price for their work.

In my case I was not asked to quote, there were no negotiations, and the terms and conditions were set by the contractor without any input by me. Although this element is not determinative, I believe it is persuasive that a contract of service existed between myself and the contractor irrespective of what the terms and conditions actually said and which terms I rejected when I was finally supplied with a copy of those terms and conditions.

Moreover, the contract required me to deliver a teaching service to July but I resigned in March. Under a contract for services, which I terminated early without delivering, would usually mean I would not get paid. In fact there was a clause in the terms that said I must deliver for the duration of the contract otherwise I would not be paid. Well, I have been paid and without penalty which also suggests the contract was 'of service', not 'for services' and that the contract would not be enforcable in law. When I suggested that I would invoice for agency for services rendered they backtracked and issued me with payslips and with cash. Again, persuasive of a contract of service.



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04th May 2011 14:49

Thanks Justine

Unfortunately, there is no obligation on an employer to pay for a CRB check; the cost can be charged to the employee. Good employers chose to meet the cost themselves (which explains why I chose to resign).

I have never found unions particularly helpful. They pay lip service to employee protection but too often they are pursuing "bigger" or "wider" agendas that may be served by the odd sacrifice of an employee here and there.

I doubt I would be permitted to rejoin the Teachers' Pension Scheme.  Certainly the agency profits from this; instead of paying into the scheme on my behalf it appropriates the contributions that would otherwise have been made for its own benefit. That is its business model it seems.

From what I gather, just because someone is deemed a "worker" does not necessarily make them an employee. There now seems to be a hybrid (agency workers) who may be neither fish nor fowl.  A 'worker' is covered by minimum wage and statutory holiday regulations but may not be covered by employment protection legislation. This is the state of employment legislation after 13 years of a Labour government.

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05th May 2011 10:12


in theory you are quite correct, however in practice it can be very different, as you have found out. The problem exists because self-employment cannot be negotiated. It is up to the E/C to decide status. So, in some cases, we have a scenario that works backwards. In order to save eers nic the E/C decides (perhaps affordability may be the reason) to have their workforce as self-employed. Next stage is to word the "contract for services" so that it will withstand any challenge from HMRC and "hey presto" you have a contract that hasn't been negotiated yet your self-employed. Looking at it from your point of view, you would be doing nothing illegal by agreeing to the terms. The onus is on the E/C, or agency in this case. As a self-employed taxpayer you would then be able to claim all the expenses incurred (not CRB) and perhaps some Capital Allowances, which should lower your tax liability. I admire the fact that you thought the agency was wrong and stuck to your guns.


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05th May 2011 11:30

You are right John, but...

Ok, the agency may have attempted to formulate its relationship with me such that I am self-employed. That's fine, although I dispute it. It is a matter of fact, not choice (of either party) whether a contract 'of service' or 'for services' exists and this has been confirmed to me in HMRC's reply. But the Agency Regulations say that for tax purposes I am an employee and so HMRC deem me to be an employee. This means I am subject to stricter deductibility criteria than self-employed individuals. Why, because according to the reply I received from HMRC "...without the agency legislation PAYE would be avoided, as would Class 1 (Both employees and employers) National Insurance Contributions. The agency legislation was therefore introduced to close this 'loophole' ... "

Duh! But if I am self employed then I am not required to pay tax under PAYE,  nor Class 1 NI so there is no such loophole! Agency workers, if they are self-employed, should enjoy the same benefits as other self-employed individuals, shouldn't they? I wonder why Agency Workers are treated worse than other self-employed workers. Does anyone know? Is it just another Gordon Brown cock[***]-up?



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05th May 2011 13:17

What is the difference
bewteen this situation (CRB) and a nurse who must havean NMC registration in order to practice: Or, for that matter, an accountant who must have a P/C?

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05th May 2011 15:55

Not sure there is a difference

I suppose practicing certificates are specific to a particular trade/profession whereas a CRB check is not specific. Teachers, social workers, or anyone who works with children or vulnerable adults must be CRB cleared. The ccheckhas to be renewed every two years at a cost of £36 per time. Quite a nice little earner for the monopoly quango that performs these checks! Or is it just backdoor taxation?

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05th May 2011 16:44

The stupidity

of it is that although the first check is not allowable the renewals are!!!!!!!!!!!!!!

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05th May 2011 18:27

Welcome to the world of tax

 Nothing to do with common sense or reality.

Jaffa cake anyone?

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