Notices of decision: who to name in decisions: more than 6 persons affected
Regulation 3 of the Social Security Contributions (Decisions and Appeals) Regulations 1999 (SI 1999 No 1027) requires that a decision must state the name of every person in respect of whom it is made. See DANSP41100 for general guidance about naming those affected by decisions.
There will be cases where the number of workers affected by a decision exceeds 6. In such cases, you must first try to agree a representative sample with the employer. When agreeing a representative sample take the following action:
- tell the employer that to reduce the administrative burden on them, HMRC and potentially the tribunal (if any of the persons named in the decision appeal to the tribunal), that HMRC would like to select and agree a representative sample of workers
- suggest workers that would be suitable but consider the employer’s objections
- consider suggesting workers for whom you have already gathered facts relevant to the decision
- if you have difficulty agreeing a representative sample ask the employer to choose some workers and agree that you can select some workers
Try to discuss the selection of workers verbally, either face to face or during a telephone conversation.
Do not assume that because an employer or their agent disagrees with our position on the issue in dispute that they will not agree a sample of workers.
The decision maker does not have to choose 6 workers as a representative sample, it may be suitable to select more or less than 6. They may consider that it’s necessary to select more than 6 workers, for example where there are significant differences in facts relevant to the decision.
If necessary, seek advice about who to name in decisions from the IPD Technical Team.
If you’ve selected more than one employee as a representative sample, you should name each employee in the DAA1(A) notice of decision you send to the employer. You should also issue a DAA1(B) notice of decision to each of the named employees.
In some cases, it may not be practical to restrict the sample size to 6. Where your sample size is larger than 6 do not name the employees in the decision. Instead, you should attach a schedule of the employees affected by the decision to the DAA1(A) issued to the employer.
When issuing a DAA1(B) notice of decision to each employee included in the sample, ensure the schedule issued to each employee includes their details, do not include any other employee’s details. Explain in a covering letter that to protect the right to confidentiality you have removed other employee’s details.
The schedule issued to the employer should include for each employee:
- the name of the employer, if more than one employer
- full names
- National Insurance number
- staff or personnel number (optional - may help the employer)
- total of employers and employees Class 1 NICs due specific to the employee
- total of employers and employees Class 1 NICs paid specific to the employee
- difference between total of employers and employees Class 1 NICs due and paid specific to the employee
Where a representative sample of workers is agreed, in a covering letter issued with the decisions to the person the DAA1(A) is addressed to:
- tell them the terms under which the representative sample was selected and agreed
- and name the person(s) who agreed the sample
- tell them to inform affected workers not included in the sample so that they are aware of what is going on and that the result of any appeal will apply to all affected employees. Consider providing the employer with an explanatory letter for issue to all affected employees. This will only be necessary where primary National Insurance contributions and/or an employment status dispute is involved.
Representative sample not agreed
Where it’s not been possible to agree a representative sample through face to face or telephone discussions and the administrative burden would be too large to issue decisions in respect of every affected person, an Information Notice, under schedule 36 Finance Act 2008, must be issued to the employer to obtain the required information and/or produce documents - see CH20000 and CH23000.
Where the employer does not provide the required information to enable you to individually identify employees and:
- you’ve either been unable to use your powers to get the information, or
- the use of your powers have failed to draw out the required information
you should issue a decision as explained in DANSP41200.