Right to reside - employment status of Big Issue sellers

Not heard of any such decision, nor did I find anything approaching it when I did a quick search of the Upper Tribunal website.

What I did find was a decision you could attack the council with CIS/3213/2007, (Judge Rowland 11 March 2009) in particular paragraph 5

“5.  It may be true that, for tax and National Insurance purposes, a self-employed person is required to register that status with HMRC.  However, it does not follow from a failure to register that a person may not be regarded as a self-employed person.  An inability to show registration may in some circumstances be evidence from which it may be inferred that a person is not self-employed but, as the Secretary of State now concedes, that is not the position here, particularly as the time for registering was still running at the date of the claimant’s claim for income support.”

I can see no reason of itself why a person selling the Big Issue should not be considered to be self employed

likewise couldn’t find/haven’t heard of.  could be an employment or immigration case perhaps.

does the LA give a reference/name for the case?  should do if they’re relying on it.

cheers ros

I don’t know of any case but you could try http://www.bigissue.com/ which explaines more about the scheme.

Actually, it’s ringing a vague bell with me and I’m sure I’ve come across it somewhere. Am trying to remember where and when and if a light suddenly dawns I will post again.

Could not find CF/1204/2009 on the UT webiste.  If you have a copy could you post it here?

Just in case you dont have my email address to hand its dstainsby@(removetheremvove)gallionsha.co.uk

I will print it off and remove the claimants name then rescan it and post the new pdf for everyone

It’s an interesting one this.  The definition of “self employed earner” in the SSC&BA; is someone in gainful employment.  That is then a question of fact not law.  Usually an employment relationship involves a contract between two parties whether express or implied.  “Employment outside the law” as mentioned earlier involving an implied contract (a service supplied for consideration-money) would, in my view, void that contract from the beginning if it induced one or both of the parties to break the law.  That would then question whether there was gainful employment at all.  But that would be one for a contract lawyer or employment law specialist.

Big issue sellers buy their product from The Big Issue Company and then sell it on at a profit and keep that profit.  They also have to sign up to a code of conduct.  In my view that is earnings for work done under a contract and liable for income tax and national insurance like any other form of earnings.  It is, after all, a form of franchising and the status of franchising is well established.  I’m sure that if a well known high street franchise did not declare its profit for tax purposes HMRC would be all over it like a rash.

Presumably The Big Issue will have records that are obtainable as proof.  And presumably it is then up to each vendor to keep records for tax purposes whether or not they earn enough to pay tax.  I suspect, however, that many vendors, at least in the beginning, have too chaotic lifestyles to do this.

I also suspect, as mentioned earlier, that the problems mentioned have been evidential ones but I have yet to read the decision.

The description of the way that the vendors work, both here and on the Big Issue website, makes it clear that the vendors are not employees. That would imply they are self employed. I would guess that it would be almost unheard of for any of them to make enough out of selling the magazines to reach the tax threshold; I would also guess that few of them reach the £5,000 threshold below which it is possible to apply for a certificate of small earnings exemption. However, that is what you do need or you are liable to pay NI contributions of £2.70 a week on all self-employed earnings.

The Big Issue does have a charitable foundation - why not approach them and ask if they can help with this case? They also ought to know that there is a problem with proving self-employed status so they can advise new vendors accordingly.

Working outside the law means working on a contract that cannot be legally enforced because it is to do something illegal or contrary to public policy - like prostitution or gambling or working as a hit-man. It could also mean working illegally at what would otherwise be a perfectly legit job but isn’t for you because you are eg disqualified from driving, or don’t have the right immigration status.

Have a look at CSJSA/340/2010. In that case the Judge (Sir Crispin of Lochnaw) ponders the nature of self employment and quotes usefully from Tilianu, as well as from Allonby (ECJ case). The context is that some people claiming to be self-employed may actually be employees etc:  Here is a bit of CSJSA/340/2010…

8.  I can well understand a situation where a person is self-employed for UK tax purposes, but never-the-less is working in a situation “under the direction of another person in return for which he received remuneration”. This is particularly so in the Construction Industry Scheme (CIS). Mr Tilianu worked in the CIS and it is of note that Sedley LJ was prepared to consider that if the facts had been investigated, that Mr Tilianu might have come within the definition of worker, notwithstanding that he was working under the CIS where he would have been paying tax as a self employed person. At paragraphs 68 &  71 in Allonby [C-256/01] the ECJ said:

“68 …the Treaty did not intend that the term ‘worker’, within the meaning of Article 141(1) EC, should include independent providers of services who are not in a relationship of subordination with the person who receives the services …
…
71. The formal classification of a self-employed person under national law does not exclude the possibility that a person must be classified as a worker within the meaning of Article 141(1) EC if his independence is merely notional, thereby disguising an employment relationship within the meaning of that article.”

Seems to me that para 68 of Allonby is relevant, and surely fits with the Big Issue seller. I really can’t imagine a form of employment that is neither self-employment nor an employee relationship, but then I never imagined that Torres would go to Chelsea.

Steve

Thank you everyone for all your contributions. It was helpful.

a bit late to this.

but don’t see how a big issue seller can be an employee.  the only person with control over his/her work his him/herself.

see Sec of State v. ready mix concrete is the leading authority

http://www.hmrc.gov.uk/manuals/esmmanual/ESM7030.htm

and see this article:

http://www.oup.com/uk/orc/bin/qanda/sample_chapters/benny_ch01.pdf