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NIC: Health worker short-changed

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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.

26th Nov 2021
Tax Writer
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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.

Legislation

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.

Comment

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.

Replies (8)

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By Hugo Fair
26th Nov 2021 13:44

Interesting ... in that even where the 'aggregated earnings' basis for calculating NICs *should* be applied, it seldom is (where lazy people and poor systems don't pick up the need or grab the necessary figures from two employments).
But in situation set out in this article, however unfortunate (and indeed unfair morally), the plaintiff never had a case.
The moral is ... try to avoid having multiple low-paid jobs (even if they total an adequate 'salary').

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Replying to Hugo Fair:
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By neiltonks
26th Nov 2021 15:56

You have to feel sorry for this guy, though. Originally he worked for a single employer and was only put into this position when part of his job was privatised. The rules for NI are so complex and little-understood that it's not surprising he didn't realise this could be the consequence. I doubt if one in a thousand employees would have done so. I suppose he could find he gets a reduced state pension because of this, too.

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Replying to neiltonks:
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By Hugo Fair
26th Nov 2021 19:32

Hi Neil, long time no see (what with Covid etc) ... but I totally agree.

I was probably a bit cavalier in only saying that the result for the plaintiff was "unfortunate (and indeed unfair morally)".
There's no way he would have been aware of the impact (probably just pleased to have retained most of his income) .... the responsibility for identifying the potential problem lies squarely with the employers (particularly the new one) - but in my experience they may not have had suitably trained staff to understand.

Ultimately it's another of those 'anomalies' that can only be truly sorted out with a radical overhaul of NI legislation (the simplest of which would be to apply tax-like rules to cumulative YTD earnings of an individual across all employments) ... but then I would say that with retirement looming on my horizon!

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Replying to neiltonks:
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By jeremybarker
01st Dec 2021 13:32

It is possible that state pension entitlement could be reduced although only 35 years in the contribution record is required to avoid that. It would be sensible to obtain a pension statement to check the situation but if there's likely to be a shortfall it can be avoided by paying Class 3 (voluntary) NI contributions. The catch is they are rather expensive - currently £15.40 a week.

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By Paul Crowley
26th Nov 2021 16:11

"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."
Odd set of words
But the correct time to consider the subsequent pension position

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By tcatt31489
29th Nov 2021 13:56

I bet he did not complain when splitting his employment into two resulted in him paying a lower overall sum in national insurance. He cannot have it both ways.

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Replying to tcatt31489:
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By jeremybarker
01st Dec 2021 13:46

The problems appear to have occurred because in some weeks (or months) the pay from both jobs fell below the lower earnings limit - currently £120 a week.

Sometimes having multiple jobs can be financially beneficial because if pay is between the lower earnings limit and primary threshold (£184 a week - for the employee) or secondary threshold (£170 a week - for the employer) that's recorded as having made NI contributions for the week (or month) even though the contribution rate is 0%.

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By CMBENNETT
30th Nov 2021 09:47

I cannot understand why the government have avoided such an obvious way to increase their tax income. If class 1 NIC liability was treated as per the tax rules on multiple employments the Exchequer would benefit immensely.

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