NIC: Health worker short-changedby
Ambulance driver, whose job was partly hived-off to a private company, found he didn’t qualify for state benefits as he hadn’t paid enough class 1 NIC on either employment.
Question of aggregation
Martin Long argued that his earnings from his two employments should be aggregated for NIC purposes, which would have resulted in higher level of NIC paid, and allowed him to qualify for employment and support allowance (ESA).
Split of work
Historically, South West Ambulance Services NHS Trust (SWAST) had been responsible for providing both ambulance services and patient transport services. Around April 2013, SWAST was contracted to provide ambulance services only. The contract for patient transport services was awarded to a private company, NSL Ltd, and the new contracts came into effect in October 2013.
Long initially worked for SWAST as both an ambulance driver and patient transport driver. His services for patient transport were transferred to NSL during the contract change.
This meant that in the year under appeal (2014/15) Long had two employments - one with SWAST and one with NSL. He worked on a zero hours contract with SWAST. Only a few employees (if indeed there were any others) were in the same position as Long, ie holding coterminous employment contracts with both employers.
In September 2013, due to health problems, Long retired from the NHS pension scheme but decided to continue to work for the NHS on a reduced scale.
Benefits claim refused
In November 2016, Long claimed for ESA. However, his claim was rejected by the DWP as he had not paid enough NICs on his earnings in 2013/2014 and 2014/2015 to qualify for ESA.
According to HMRC records, in 2014/15 no NIC was paid on Long’s earnings from NSL and only £26.93 NIC was paid on his earnings from SWAST.
Long contended that, in 2014/15, more NIC should have been paid on his earnings from his employments with SWAST and NSL on the basis that the earnings from those employments should have been aggregated. Applying aggregation would have meant that Long was entitled to claim ESA.
The primary issue for the FTT to determine in this appeal [TC08272] was whether Long’s earnings from NSL and SWAST should have been aggregated for NIC purposes.
Regulation 15 of the Social Security (Contributions) Regulations 2001 concerns aggregation for earnings that are paid by different employers.
In order for aggregation to apply to this case, NSL and SWAST must have carried on business in association with each other. Additionally, it must have been reasonably practical for the earnings to have been aggregated.
No business in association
Ultimately, the FTT determined that the businesses carried on by NSL and SWAST were not carried on in association with each other.
The FTT noted that there was no statutory definition of the concept of carrying on business in association, but considered it to require a multifactorial analysis, including factors such as:
- SWAST and NSL did not share any premises.
- SWAST and NSL did not share any vehicles or equipment.
- SWAST did not provide services to NSL, and vice versa.
- Long was paid separately by the two employers.
- SWAST and NSL operated independently of each other.
One of Long’s arguments for association was that he could, on the same day, drive a patient to hospital in an ambulance (providing emergency services), and later the same day drive the same patient to a different destination (providing patient transport services).
The FTT rejected this, among other, arguments, stating that it was simply an example of Long carrying out his duties as an employee in his two separate employments.
The appeal was dismissed.
As the FTT found that SWAST and NSL were not carrying on business in association with each other, it did not need to go on to consider whether it would have been reasonably practicable for payments from both employers to have been aggregated.