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Testing information for CEST update
Source: WhatDoTheyKnow
Authority: HM Revenue and Customs
Status: We're waiting for
Dr Colin Iain Campbell MBChB FRSPH
to read recent responses and update the status.
Imported path: /opt/loancharge/imports/wdtk/requests/testing_information_for_cest_upd
Open original request on WhatDoTheyKnow
Imported text
SOURCE: WhatDoTheyKnow
SOURCE_URL: https://www.whatdotheyknow.com/request/testing_information_for_cest_upd
TITLE: Testing information for CEST update
AUTHORITY: HM Revenue and Customs
AUTHORITY_URL: https://www.whatdotheyknow.com/body/hmrc
STATUS: We're waiting for
Dr Colin Iain Campbell MBChB FRSPH
to read recent responses and update the status.
REQUEST_SLUG: testing_information_for_cest_upd
CAPTURED_AT: 2026-05-19T07:13:28+00:00
PROVENANCE: {"first_seen_at": "2026-05-18T12:53:37", "first_seen_page": "3", "first_query_term": "\"Loan Charge\"", "first_date_after": "2020/01/01", "first_date_before": "2021/01/01", "matched_query_terms": "\"Loan Charge\"", "matched_date_ranges": "2020/01/01 to 2021/01/01", "first_search_url_template": "https://www.whatdotheyknow.com/search/%22Loan%20Charge%22/requests?commit=Filter&query=%22Loan+Charge%22&request_date_after=2020%2F01%2F01&request_date_before=2021%2F01%2F01&request_variety%5B%5D=sent&request_variety%5B%5D=response&request_variety%5B%5D=comment&sortby=&utf8=%E2%9C%93&page="}
ATTACHMENTS:
- Dr_Colin_Iain_Campbell_FOI2019_02545.pdf | https://www.whatdotheyknow.com/request/testing_information_for_cest_upd/response/1495370/attach/2/Dr%20Colin%20Iain%20Campbell%20FOI2019%2002545.pdf?cookie_passthrough=1 | application/pdf | 102364 bytes
- [not downloaded] | https://www.whatdotheyknow.com/request/testing_information_for_cest_upd/response/1495370/attach/html/2/Dr%20Colin%20Iain%20Campbell%20FOI2019%2002545.pdf.html | | 0 bytes
- Dr_Campbell_FOI2020_00028_PIT.pdf | https://www.whatdotheyknow.com/request/testing_information_for_cest_upd/response/1517308/attach/2/Dr%20Campbell%20FOI2020%2000028%20PIT.pdf?cookie_passthrough=1 | application/pdf | 54746 bytes
- [not downloaded] | https://www.whatdotheyknow.com/request/testing_information_for_cest_upd/response/1517308/attach/html/2/Dr%20Campbell%20FOI2020%2000028%20PIT.pdf.html | | 0 bytes
- Dr_Campbell_FOI2020_00028.pdf | https://www.whatdotheyknow.com/request/testing_information_for_cest_upd/response/1540536/attach/2/Dr%20Campbell%20FOI2020%2000028.pdf?cookie_passthrough=1 | application/pdf | 1280358 bytes
- [not downloaded] | https://www.whatdotheyknow.com/request/testing_information_for_cest_upd/response/1540536/attach/html/2/Dr%20Campbell%20FOI2020%2000028.pdf.html | | 0 bytes
- Dr_Campbell_IR2020_00026.pdf | https://www.whatdotheyknow.com/request/testing_information_for_cest_upd/response/1540560/attach/2/Dr%20Campbell%20IR2020%2000026.pdf?cookie_passthrough=1 | application/pdf | 134407 bytes
- [not downloaded] | https://www.whatdotheyknow.com/request/testing_information_for_cest_upd/response/1540560/attach/html/2/Dr%20Campbell%20IR2020%2000026.pdf.html | | 0 bytes
- IR2020_00026.pdf | https://www.whatdotheyknow.com/request/testing_information_for_cest_upd/response/1550318/attach/2/IR2020%2000026.pdf?cookie_passthrough=1 | application/pdf | 89079 bytes
- [not downloaded] | https://www.whatdotheyknow.com/request/testing_information_for_cest_upd/response/1550318/attach/html/2/IR2020%2000026.pdf.html | | 0 bytes
- FOI2020_00503_FOI_response.pdf | https://www.whatdotheyknow.com/request/testing_information_for_cest_upd/response/1554983/attach/2/FOI2020%2000503%20FOI%20response.pdf?cookie_passthrough=1 | application/pdf | 766207 bytes
- [not downloaded] | https://www.whatdotheyknow.com/request/testing_information_for_cest_upd/response/1554983/attach/html/2/FOI2020%2000503%20FOI%20response.pdf.html | | 0 bytes
================================================================================
MESSAGE 1 [outgoing]
HEADER: Dr Colin Iain Campbell MBChB FRSPH
3 December 2019
Delivered
--------------------------------------------------------------------------------
Dear HM Revenue and Customs,
Under the Freedom of Information Act 2000 I would like to request the following information be disclosed electronically:
HMRC's CEST tool has been updated in November and now includes additional questions. Please disclose:
1. The additional testing records/documentation relating to the revision of the tool.
2. A list of which cases from the case law the tool was tested against.
3. How many contractors were engaged to update the tool.
4. How many of the contractors working on the tool were deemed to be inside IR35.
5. A copy of any briefing notes provided to those updating the tool and any meeting minutes discussing what questions should be added.
In considering the information for release could you kindly consider apply any exemptions narrowly to the specific information covered releasing all non-exempt material.
In the unlikely event that commercial sensitivity under Section 43 is cited please state the *specific subsection* relied upon and full public interest reasoning. I shall reply with relevant public interest and prejudice representations for your consideration.
In the unlikely event that actionable breach of confidence is asserted it must be remembered that the requirement is not that such action could be brought but that if brought it would, on balance of probabilities, succeed. Whilst the exemption is absolute it must be recalled that such court cases consider the public interest and thus without consideration of the public interest one cannot apply the exemption despite the fact that the public interest consideration arrises indirectly unlike usual qualified exemptions . Please state the nature of any breach of confidence it is asserted would occur so that we can provide the required public interest representations for the applicability of the section to be reviewed and disclose the signed and dated non-disclosure agreement where it is claimed one would be grounds for such action.
With respect to Section 31 it is reminded that HMRC states CEST is only guidance and HMRC's own counsel has repeatedly stated at tribunal that CEST should be ignored and not considered as evidence -this despite HMRC rhetoric that it will view CEST as binding (the notable caveat is that it only considers this to be the case where it agrees with the answers, and then when things get to court dismisses use of the tool entirely - something not unsurprising as the tool is a mechanistic approach and has no legal status). It is clear then that information relating to the development of CEST falls outwith the scope of Section 31 and accordingly this exemption should not be used.
Public Interest Representation:
The fairness of up to 5 million people's employment status determinations may be affected by the information. CEST has repeatedly been criticised for a number of critical failings, from being a mechanistic approach to ignoring significant areas of caselaw. There is an overwhelming public interest in the tens of thousands of public sector contractors, and now millions of private sector workers understanding what has occurred here as this materially affects their businesses and could result in tens of thousands of companies failing and financial hardship for contractors.
There has been significant media coverage of the tool in newspapers and in Private Eye magazine, and every major party has so far made commitments to reviewing the proposals for IR35 roll out to the private sector and application to the public sector. Numerous MPs have signed an Early Day Motion relating to the public sector IR35 reforms and private sector roll out. This is thus an issue with significant political scrutiny, newspaper interest, and livelihoods on the line. There is an overwhelming public interest in HMRC being seen to act openly and transparently in this matter which would not be served by inappropriate use of qualified exemptions.
More detailed public interest representations and prejudice tests will be provided if necessary at internal review stage, including media and contractor news citations where relevant.
Yours faithfully,
Dr Colin Iain Campbell MBChB FRSPH PGDip(Law)
================================================================================
MESSAGE 2 [incoming]
HEADER: foi.team@hmrc.gsi.gov.uk on behalf of FOI Team,
HM Revenue and Customs
4 December 2019
--------------------------------------------------------------------------------
Our ref: FOI2019/02545
Dear Dr Campbell,
Freedom of Information Act 2000 Acknowledgement
Thank you for your communication of 3rd December which has been passed to
HMRC's Freedom of Information Team.
We have allocated the above reference which you should quote if you need
to contact us.
The Team will arrange for a reply to be sent to you which will either
comply with HMRC's obligations under Freedom of Information Act or, if we
think it's an enquiry that we don't need to address under the terms of the
Act, let you know why. If it is the latter we will, if possible, pass it
on to a more appropriate part of the Department for answer.
Yours sincerely
HMRC Freedom of Information Act Team
================================================================================
MESSAGE 3 [incoming]
HEADER: foi.team@hmrc.gsi.gov.uk on behalf of FOI Team,
HM Revenue and Customs
6 January 2020
--------------------------------------------------------------------------------
1 Attachment
Dr Colin Iain Campbell FOI2019 02545.pdf
99K
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Dear Dr Campbell,
I am writing in response to your request for information, received 3rd
December.
Yours sincerely,
HMRC Freedom of Information Team
================================================================================
MESSAGE 4 [outgoing]
HEADER: Dr Colin Iain Campbell MBChB FRSPH
7 January 2020
Delivered
--------------------------------------------------------------------------------
Dear HM Revenue and Customs,
Firstly Happy New Year to the FOI team at HMRC. Many thanks for the important public service you provide.
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of HM Revenue and Customs's handling of my FOI request 'Testing information for CEST update'.
I wish to request a review into the handling of questions 1 ,2 and 5, as set out below and to alter the request in respect of 3 and 4 such that you should be enabled to comply without there being any risk regarding confidential information and request that you review your response in light of the revised request.
NB - NOTE ALSO THE ADDITIONAL FOI REQUEST AT THE END.
In general in relation to the attempt to claim a Section 22(1) exemption - the Commissioner is very clear that in general the longer the time to intended publication the less likely the exemption is to apply. You have set an EXTREMELY long window for publication which falls long after the promised review of IR35 by all major parties, including the Tories/HM Gov. This will prevent proper scrutiny being brought to bear on the updates to the tool during the review - indeed the reason this information is sought is with view to feeding into All Party Parliamentary Groups, consultations, and indeed this very review. It is our view that, given the lengthy time to publication Section 22(1) is highly unlikely to apply (eg See ICO Decision notice FS5012803 Paragraph 60 which states
"
..However, in considering Section 22(1)(c) timing is a key factor in considering what is reasonable in the circumstances. The Commissioner is of the view that, in general, the sooner the intended publication date the better the case for maintaining the exemption
"
The converse is clearly pertinent here and very clearly backed up by the ICO's guidance on Section 22. We accordingly feel the exemption does not apply, however please additionally see below and respond to the questions under each itemised point.
With respect to 1, 2 and 5, for which a Section 22 (1) exemption has been applied the following representations and points should form part of an internal review of this decision please, to avoid confusion with the initial request numbers these points have been given letters rather than numbers - a public interest representation covering all of these points follows:
(a). Could you confirm to what extent HMRC intended (prior to 3rd December 2019) to fully publish the entirety of each of the following, or whether HMRC intended to select appropriate information from the item in the bullet point point to publish at a later date. At what stage before publication will such a selection be made?
(i) Additional Testing Records/Testing Documentation relating to the revision of the tool.
-> You should clearly confirm whether or not you hold information within the scope of this point please.
->If held will the entirety be published or a selection of relevant parts?
-> If the latter when will this selection be made?
->Where does HMRC intend to publish this information, and to what audience?
(ii)A list of case law cases against which the tool was tested.
-> Clearly confirm whether or not information within the scope of this specific point is held please.
->If held will the entirety be published or a selection of relevant parts?
->If the latter when will this selection be made?
->Where does HMRC intend to publish this information, and to what audience?
IMPORTANT - HMRC has previously published a list of cases which the old CEST tool version was tested against IF THIS HAS NOT CHANGED then SECTION 22(1) --> CANNOT <-- apply as once information has been published before the exemption CEASES TO APPLY.
Thus it is vitally important that HMRC disclose whether additional cases were used in testing, and if not, then Section 22(1) does NOT apply HMRC is under a statutory duty to either disclose the list OR, if a Section 21 exemption is claimed to provide Advice and Assistance to locate the list under Section 16. Individual characteristics of the requester are an important consideration in deciding whether information is 'Reasonably Accessible' under Section 21 and I would point to the fact that, as a dyslexic, the information may be more difficult for me to locate than others. There is caselaw authority in Arnes v ICO & Cabinet Office (EA/2007/00110) that in situations where the individual characteristics of the requester make locating the information more difficult (the example is of a large database, such as is the case with the whatdotheyknow website) the public authority is under a duty arising from FOIA Section 16 to provide a link.
(iii) briefing notes provided to those updating the tool and any meeting minutes
discussing what questions should be added.
It seems somewhat dubious that a decision to publish this would have been taken before receipt of the FOI, as such information relating to the development and briefing of teams is not routinely published unless specifically requested. It is reminded that a publication decision must have been taken prior to the request for the exemption to apply and deciding to publish the information after the request as a means of avoiding disclosing information until a later date would not work.
PLEASE NOTE THE ADDITIONAL FOI REQUESTING WRITTEN EVIDENCE OF AN INTENT TO PUBLISH THIS INFORMATION AFTER THE INTERNAL REVIEW REQUEST.
-> Clearly confirm whether or not information within the scope of this specific point is held please.
->If held will the entirety be published or a selection of relevant parts? All meeting minutes? All briefing notes to developers?
->If relevant parts when will this selection be made?
->Where does HMRC intend to publish this information, and to what audience?
PUBLIC INTEREST REPRESENTATION:
We are astonished that HMRC feels it can legitimately conclude that it is reasonable to delay publication of such information when all political parties have committed to a review of IR35/Off Payroll prior to implementation in April 2020, no delay has as yet been announced to this date, and the information is explicitly sought to brief MPs, feed into the Loan Charge All Party Parliamentary Group, inform submissions to the promised review and any other consultations. HMRC's decision to delay publication for a long time, and until after legislation has been passed the advisability of which might be influenced by the information sought will have the effect of stimying debate and reducing the quality of the promised review. This will have repercussions for the entire gig economy - both workers and clients who may end up having to use a tool which may not be fit for purpose.
It will be noted that for Section 22 to apply under Section 22(1)(c) the decision to withhold must be 'reasonable in all circumstances' - withholding information vital to public debate on a matter so important all major political parties have promised a review, in some cases as a manifesto commitment, until after the review itself has occurred and the legislation itself has been implemented is very unlikely to be considered in all circumstances reasonable, nor in the Public Interest, as it could lead to a defective product being used en masse, and uninformed legislative decisions being made. I would specifically point out that the circumstances surrounding publication (that it could result in less scrutiny being prior to legislation being passed) are important on a statutory level, and that impending IR35 review, upcoming IR35 forum meetings, the upcoming budget, and planned legislation to roll out Chapter 10 of Part 2 of ITEPA 2003 to the private sector are all highly pertinent Circumstances within the meaning of 22(1)(c). This should be considered alongside the very long time before HMRC proposes publishing this. Please see also ICO Decision notice FS5012803 at paragraph 60 which states
"
..However, in considering Section 22(1)(c) timing is a key factor in considering what is reasonable in the circumstances. The Commissioner is of the view that, in general, the sooner the intended publication date the better the case for maintaining the exemption
"
Given all of the above I would suggest that the decision to apply the exemption is so irrational that it may well be Wednesbury unreasonable - in that no reasonable person acting reasonably could have made a decision to withhold the information until after the above events where they are acting appropriately and considering the Public Interest as required by the Act (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223).
--------------
Regarding questions 3 and 4 and HMRC's attempt to claim that a Section 40 exemption (Personal Data) applies to this.
Firstly, and apologies if this is somewhat pedantic, I would like to correct HMRC factually on the basis of the exemption. I can confirm that I am NOT the data subject here. Section 40 is ONLY an absolute exemption with respect to the data subject themselves own data (with respect to which Section 40 is an absolute exemption, this specifically arises under Section 40(1)...which does not apply).
You have not claimed Section 40(1) but rather Section 40(2), which given I am not a data subject I would agree is the appropriate section to consider. This is, contrary to what is stated, a qualified exemption - subject to a Fairness Test, rather than a public interest test.
I am, however keen to enable you to honour your data protection duties and would thus modify items 3 and 4 condensing them into a single information request and avoiding the issue HMRC is attempting to cite as follows, substitute questions 3 and 4 for:
------>"Please disclose what percentage of contractors working no the CEST tool update were deemed inside IR35( i.e. the Off Payroll Rules/Chapter 10 of Part 2 of ITEPA 2003)". <-----
There should be no risk that the new question format would identify any worker as only a percentage is sought.
NOTE that for the subject to be identified they need to be identifiable on the basis of publicly available information the exemption will not apply where use of internal information only held by HMRC might enable the identification of the worker (eg if there were only one worker - only HMRC/the worker would know this and a question of identification and thus breach of data protection principles on the basis of a 100% statistic would therefore not arise).
We trust that this enables your compliance with this section and that the qualified Section 40(2) exemption/fairness test are no longer an issue preventing disclosure failing which we would request that you provide Advice and Assistance as to how to prevent the exemption being engaged pursuant to your Section 16 duty.
A full history of my FOI request and all correspondence is available on the Internet at this address:
https://www.whatdotheyknow.com/request/t...
======FURTHER FREEDOM OF INFORMATION ACT 2000 REQUEST ======
Under FOIA 2000 please disclose the following:
1. In relation to the original FOI request above
(a) All emails, messages, minutes, and information in a recorded format relating to the response to my original FOI request of 3rd of December. Including requests for the source material , and discussions on which exemptions might apply. The full subject and date and time of any emails is to be considered within the scope of the request, all names which can be disclosed due to seniority should be and where not disclosed due to Section 40(2) fairness considerations the job title/civil service rank should be disclosed in all instances.
(b) Could any written evidence of the intent to publish briefing notes provided to those updating the tool and any meeting minutes please be disclosed, OR please clearly confirm if this information is not held.
The stipulations as regards exemptions NDAs etc and public interest are the same as with the original request of 3rd of December and for brevity are not reproduced again here.
I look forward to your prompt response to this additional FOI request and to the Internal Review request ideally within the prescribed period of 20 days. Should you require clarification please contact me within 48 hours as per guidance. Where information is refused please provide Advice and Assistance with how to enable your compliance with a modified request where appropriate.
Many thanks for taking the time to read and respond to this message.
Yours faithfully,
Dr Colin Iain Campbell MBChB FRSPH
================================================================================
MESSAGE 5 [outgoing]
HEADER: Dr Colin Iain Campbell MBChB FRSPH
7 January 2020
Delivered
--------------------------------------------------------------------------------
Dear [
email address
] on behalf of FOI Team,
Correcting a minor typo:
------>"Please disclose what percentage of contractors working no the CEST tool update were deemed inside IR35( i.e. the Off Payroll Rules/Chapter 10 of Part 2 of ITEPA 2003)". <-----
should read:
------>"Please disclose what percentage of contractors working ON the CEST tool update were deemed inside IR35( i.e. the Off Payroll Rules/Chapter 10 of Part 2 of ITEPA 2003)". <-----
Yours sincerely,
Dr Colin Iain Campbell MBChB FRSPH PGDip(Law)
================================================================================
MESSAGE 6 [incoming]
HEADER: foi.team@hmrc.gsi.gov.uk on behalf of FOI Team,
HM Revenue and Customs
8 January 2020
--------------------------------------------------------------------------------
Our ref: IR2020/00026
Dear Dr Campbell,
Freedom of Information Act 2000 Acknowledgement
Thank you for your communication of 7th January which has been passed to
HMRC's Freedom of Information Team.
We have allocated the above reference which you should quote if you need
to contact us.
The Team will arrange for a reply to be sent to you which will either
comply with HMRC's obligations under Freedom of Information Act or, if we
think it's an enquiry that we don't need to address under the terms of the
Act, let you know why. If it is the latter we will, if possible, pass it
on to a more appropriate part of the Department for answer.
Yours sincerely
HMRC Freedom of Information Act Team
================================================================================
MESSAGE 7 [incoming]
HEADER: foi.team@hmrc.gsi.gov.uk on behalf of FOI Team,
HM Revenue and Customs
8 January 2020
--------------------------------------------------------------------------------
Our ref: FOI2020/00028
Dear Dr Campbell,
Freedom of Information Act 2000 Acknowledgement
Thank you for your communication of 7th January which has been passed to
HMRC's Freedom of Information Team.
We have allocated the above reference which you should quote if you need
to contact us.
The Team will arrange for a reply to be sent to you which will either
comply with HMRC's obligations under Freedom of Information Act or, if we
think it's an enquiry that we don't need to address under the terms of the
Act, let you know why. If it is the latter we will, if possible, pass it
on to a more appropriate part of the Department for answer.
Yours sincerely
HMRC Freedom of Information Act Team
================================================================================
MESSAGE 8 [incoming]
HEADER: foi.team@hmrc.gsi.gov.uk on behalf of FOI Central Team,
HM Revenue and Customs
4 February 2020
--------------------------------------------------------------------------------
1 Attachment
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Dear Dr Campbell
The date that the response is due for your request, FOI2020/00028, has
been changed to 3rd March
Kind Regards
Fareena Asmat
================================================================================
MESSAGE 9 [outgoing]
HEADER: Dr Colin Iain Campbell MBChB FRSPH
2 March 2020
Delivered
--------------------------------------------------------------------------------
Dear [
email address
] on behalf of FOI Central Team,
You will be aware that a number of concerned members of the public have been emailing public interest representations about the above two FOIs to the following address:
Email: [
email address
]
Quoting reference: FOI2020/00028
Under the Freedom of Information Act 2000:
Please disclose copies of all public interest representations you have received about this FOI request. For the avoidance of doubt personal data about the providers of these representations is not sought (and time taken to redact such information under Section 40 is not a consideration with respect to the Section 12 Costs Limit).
Yours sincerely,
Dr Colin Iain Campbell MBChB FRSPH PGDip(Law)
================================================================================
MESSAGE 10 [incoming]
HEADER: foi.team@hmrc.gsi.gov.uk on behalf of FOI Team,
HM Revenue and Customs
3 March 2020
--------------------------------------------------------------------------------
Our ref: FOI2020/00503
Dear Dr Campbell,
Freedom of Information Act 2000 Acknowledgement
Thank you for your communication of 2nd March which has been passed to
HMRC's Freedom of Information Team.
We have allocated the above reference which you should quote if you need
to contact us.
The Team will arrange for a reply to be sent to you which will either
comply with HMRC's obligations under Freedom of Information Act or, if we
think it's an enquiry that we don't need to address under the terms of the
Act, let you know why. If it is the latter we will, if possible, pass it
on to a more appropriate part of the Department for answer.
Yours sincerely
HMRC Freedom of Information Act Team
================================================================================
MESSAGE 11 [incoming]
HEADER: foi.team@hmrc.gsi.gov.uk on behalf of FOI Team,
HM Revenue and Customs
4 March 2020
--------------------------------------------------------------------------------
1 Attachment
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Dear Dr Campbell,
With apologies for the delayed response, I am writing in response to your
request for information, received 7th January.
Yours sincerely,
HMRC Freedom of Information Team
================================================================================
MESSAGE 12 [incoming]
HEADER: foi.team@hmrc.gsi.gov.uk on behalf of FOI Team,
HM Revenue and Customs
4 March 2020
--------------------------------------------------------------------------------
1 Attachment
Dr Campbell IR2020 00026.pdf
131K
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Dear Dr Campbell,
With apologies for the delayed response, I am writing in response to your
request for information, received 7th January.
Yours sincerely,
HMRC Freedom of Information Team
================================================================================
MESSAGE 13 [incoming]
HEADER: foi.team@hmrc.gsi.gov.uk on behalf of FOI Team,
HM Revenue and Customs
19 March 2020
--------------------------------------------------------------------------------
1 Attachment
IR2020 00026.pdf
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Dear Dr Campbell,
We are writing in response to your request for information, received 7
January.
Yours sincerely,
HMRC Freedom of Information Team
================================================================================
MESSAGE 14 [incoming]
HEADER: foi.team@hmrc.gsi.gov.uk on behalf of FOI Team,
HM Revenue and Customs
31 March 2020
--------------------------------------------------------------------------------
1 Attachment
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Dear Dr Campbell,
We are writing in response to your request for information, received 2
March.
Yours sincerely,
HMRC Freedom of Information Team
================================================================================
ATTACHMENT TEXT EXTRACTION / OCR
================================================================================
--------------------------------------------------------------------------------
ATTACHMENT: Dr_Campbell_FOI2020_00028.pdf
TEXT_FILE: Dr_Campbell_FOI2020_00028.pdf.txt
METHOD: pdf_native
OCR_USED: False
PAGES: 18
--------------------------------------------------------------------------------
--- PDF page 1 ---
Information is available in large print, audio and Braille formats.
Text Relay service prefix number – 18001
Freedom of Information Team
S1715
6 Floor
Central Mail Unit
Newcastle Upon Tyne
NE98 1ZZ
Dr Colin Iain Campbell
By email: request-624890-
ad76de9e@whatdotheyknow.com
Email
foi.request@hmrc.gov.uk
Web
www.gov.uk
Date: 4 March 2020
Our ref:
FOI2020/00028
Dear Dr Campbell
Freedom of Information Act 2000 (FOIA)
Thank you for your request, which was received on 7 January, for the following information:
“1. In relation to the original FOI request
(a) All emails, messages, minutes, and information in a recorded format relating to the
response to my original FOI request of 3rd of December. Including requests for the source
material , and discussions on which exemptions might apply. The full subject and date and
time of any emails is to be considered within the scope of the request, all names which can
be disclosed due to seniority should be and where not disclosed due to Section 40(2)
fairness considerations the job title/civil service rank should be disclosed in all instances.
(b) Could any written evidence of the intent to publish briefing notes provided to those
updating the tool and any meeting minutes please be disclosed, OR please clearly confirm if
this information is not held.”
We can confirm we hold information within the scope of your request and this has been
provided in Annex A and B. You will note that there are redactions on the documents. These
have been made to ensure we comply with the principles of the Data Protection Act 2018
and prevent personal information being released. The relevant FOIA exemptions for these
redactions are section 40 and 44. Redactions have also been made to withhold information
which is considered as exempt from disclosure under section 22 of the Act. This exemption
covers information that is intended to be published in the future.
In response to part (a) of your request for all emails, messages, minutes and information
relating to FOI2019/02545, please find attached at Annex A, a copy of all email
correspondence.
In response to part (b) for written evidence of the intent to publish briefing notes and meeting
minutes, we have provided an email at Annex B outlining our position.
Please see Annex C for more detailed information on the engaged exemptions.
If you are not satisfied with this reply you may request a review within two months by
emailing foi.review@hmrc.gov.uk, or by writing to the address at the top right-hand side of
this letter.
1
--- PDF page 2 ---
If you are not content with the outcome of an internal review you can complain to the
Information Commissioner’s Office.
Yours sincerely,
Freedom of Information Team
2
--- PDF page 3 ---
From:
Sent: 30 December 2019 14:00
To:
Subject: RE: Case FOI2019/02545 [OFFICIAL‐SENSITIVE]
Thanks
I have reflected on this further and
. I’ve amended the
draft which is with my G6 for review.
Policy Advisor | Off‐Payroll Reform Programme | HMRC |
, 100 Parliament Street, London
SW1A 2BQ |
From:
Sent: 30 December 2019 13:11
To:
Cc:
Subject: RE: Case FOI2019/02545 [OFFICIAL‐SENSITIVE]
Thanks
It depends on how the
is split. The wording we would use for numbers less than five is
copied below.
Withheld numbers
Where totals amount to fewer than five people, we must consider whether releasing those
numbers would breach our statutory obligations under the General Data Protection
Regulation (GDPR). In this case we believe providing actual numbers could lead to
identification of the individuals concerned, therefore, the information has been withheld
under section 40(2) of the FOIA.
Thanks for confirming – I’m content with your use of s22.
| FOI Policy Adviser
Freedom of Information Team | Solicitor's Office and Legal Services
HMRC |
| Canary Wharf | 10 South Colonnade | London | E14 4PU
Email:
From:
Sent: 30 December 2019 12:57
To:
Subject: RE: Case FOI2019/02545 [OFFICIAL‐SENSITIVE]
3
Annex A - FOI2020/00028
--- PDF page 4 ---
Thanks for this. We are waiting for CDIO to confirm the numbers. I did think about whether the
numbers could somehow suggest the identity of an individual but I couldn’t see how; the identities
of the people who worked on the tool is not known and I can’t see how the release of the figures
could identify them. What exemption could we use to withhold the information?
On the second point, we do intend to release a range of data including relevant meeting and briefing
notes (properly redacted of course).
Policy Advisor | Off‐Payroll Reform Programme | HMRC |
, 100 Parliament Street, London
SW1A 2BQ |
From:
Sent: 30 December 2019 12:50
To:
Cc:
Subject: RE: Case FOI2019/02545 [OFFICIAL‐SENSITIVE]
Thanks
The answers to 4 are not yet in the draft – are you still trying to find these out? As the
answer to Q3 is already very small
you may have to withhold the answer to Q4 as
those figures might allow the attribution to and identification of the individuals concerned as
the figures are low and individuals could be identified.
You’re using s22 to answer Q1, 2 and 5 – my only query here is regarding Q5, is the
planned publication going to include A copy of briefing notes and any meeting minutes?
Thanks
| FOI Policy Adviser
Freedom of Information Team | Solicitor's Office and Legal Services
HMRC |
| Canary Wharf | 10 South Colonnade | London | E14 4PU
Email:
From:
Sent: 30 December 2019 11:32
To:
Subject: RE: Case FOI2019/02545 [OFFICIAL‐SENSITIVE]
Hi
Draft response and press briefing attached. This has been cleared by my G6 but not yet by my SCS.
4
--- PDF page 5 ---
Policy Advisor | Off‐Payroll Reform Programme | HMRC |
100 Parliament Street, London
SW1A 2BQ |
|
From:
Sent: 30 December 2019 11:05
To:
Cc:
Subject: Case FOI2019/02545
Morning
I’ve taken over this case from
– have you produced a draft that’s ready for a QA yet?
Do you need any advice on handling?
Thanks,
| FOI Policy Adviser
Freedom of Information Team | Solicitor's Office and Legal Services
HMRC |
| Canary Wharf | 10 South Colonnade | London | E14 4PU
Email:
_____________________________________________
From:
Sent: 06 January 2020 13:43
To:
Subject: RE:
FOI2019_02545
Thanks, total figure was
and then I think it was a
split and these contractors
met external companies so I agreed to s40
| FOI Policy Adviser
Freedom of Information Team | Solicitor's Office and Legal Services
HMRC | 6th Floor | Canary Wharf | 10 South Colonnade | London | E14 4PU
Email:
hmrc.gsi.gov.uk |
_____________________________________________
From:
Sent: 06 January 2020 13:21
To:
Subject:
FOI2019_02545
5
--- PDF page 6 ---
6
--- PDF page 7 ---
Thanks for copying this to me,
. Looks fine.
Hope you had a good break. C
Cerys Mcdonald, Director |Offpayroll Reform Programme | HM Revenue & Customs | Ty Glas, Cardiff
From:
Sent: 02 January 2020 16:14
To: McDonald, Cerys (CS&TD)
Fletcher, Rowena (CS&TD
Individuals Policy, Employment Status)
Cc:
Subject: RE: FOI2019/02545 [OFFICIAL-SENSITIVE]
All
has made some final changes to the draft to include more explanatory text on use of the
FOIA s40 exemption. The final version is attached.
Thanks
Policy Advisor | Off-Payroll Reform Programme | HMRC |
100 Parliament Street, London
SW1A 2BQ |
From:
Sent: 02 January 2020 14:50
To:
McDonald, Cerys (CS&TD)
Cc: Fletcher, Rowena (CS&TD Individuals Policy, Employment Status)
Subject: FOI2019/02545 [OFFICIAL-SENSITIVE]
– cleared FOI response and press briefing attached for 02545 –
. Please upload
these to
and arrange for the response to be issued on Monday 6 January.
7
--- PDF page 8 ---
Cerys – to keep you sighted.
Happy to discuss if you have any questions.
Regards
Policy Advisor | Off-Payroll Reform Programme | HMRC |
, 100 Parliament Street, London
SW1A 2BQ |
From: Fletcher, Rowena (CS&TD Individuals Policy, Employment Status)
Sent: 02 January 2020 14:25
To:
Cc:
Subject: RE: URGENT - FOR CLEARANCE BY CLOSE FRIDAY 03/01: FOI2019/02545
Thanks
, this looks fine.
Rowena
Rowena Fletcher | Deputy Director | Off Payroll Working Programme |
| 100
Parliament Street, London SW1A 2BQ |
From:
Sent: 02 January 2020 14:23
To: Fletcher, Rowena (CS&TD Individuals Policy, Employment Status)
Cc:
Subject: RE: URGENT - FOR CLEARANCE BY CLOSE FRIDAY 03/01: FOI2019/02545
[OFFICIAL-SENSITIVE]
Thanks, Rowena.
I have amended the attached draft to reflect our discussion and your comments below. Once cleared
I will copy in Cerys to the final version that goes back to
on the FOI team for uploading onto
and issuing the response to
.
– Rowena has cleared the response for
so that one can be issued.
8
--- PDF page 9 ---
Thanks
Policy Advisor | Off-Payroll Reform Programme | HMRC |
, 100 Parliament Street, London
SW1A 2BQ |
From: Fletcher, Rowena (CS&TD Individuals Policy, Employment Status)
Sent: 02 January 2020 13:36
To:
Cc:
Subject: RE: URGENT - FOR CLEARANCE BY CLOSE FRIDAY 03/01: FOI2019/02545
[OFFICIAL-SENSITIVE]
Thanks
The response to the
is fine.
As discussed, on the response to
, we should avoid
being able to interpret
the answer as saying that
contractors were engaged to work on CEST but fewer than five of
those were within the off-payroll working rules and instead explain that by contractors we
understand
to mean individuals who could be within the OPRW rules, which will be
fewer than five and therefore non-disclosable?
I think we should sight Cerys too for info.
Rowena
Rowena Fletcher | Deputy Director | Off Payroll Working Programme |
| 100
Parliament Street, London SW1A 2BQ |
From:
Sent: 02 January 2020 10:32
To: Fletcher, Rowena (CS&TD Individuals Policy, Employment Status)
Cc:
Subject: URGENT - FOR CLEARANCE BY CLOSE FRIDAY 03/01: FOI2019/02545
[OFFICIAL-SENSITIVE]
Rowena
9
--- PDF page 10 ---
FOI responses attached with a press briefing for 02545. This request is from
We can withhold much
of the information requested as we plan to publish it at a later date. Some other information is
withheld to prevent possible identification of contractors engaged by HMRC.
The deadline for response is Monday 6 January so good if you can clear the responses by close
tomorrow. I don’t think we need to get Cerys’s sign-off for the
response as the information
being released is minimal and inconsequential. I suggest we instead keep Cerys sighted when we
issue the response to
No further clearance needed for the
as nothing is
being released.
Happy to discuss.
Policy Advisor | Off-Payroll Reform Programme | HMRC |
, 100 Parliament Street, London
SW1A 2BQ |
Thanks
,
Section 40 wording amended since Rowena cleared the draft, here’s a copy of the final draft
that’s gone to Press Office.
| FOI Policy Adviser
Freedom of Information Team | Solicitor's Office and Legal Services
HMRC |
| Canary Wharf | 10 South Colonnade | London | E14 4PU
Email:
From:
Sent: 02 January 2020 15:03
To:
Subject: RE: FOI2019/02545 [OFFICIAL-SENSITIVE]
Copy me in as the contact for Policy.
Policy Advisor | Off-Payroll Reform Programme | HMRC |
100 Parliament Street, London
SW1A 2BQ |
10
--- PDF page 11 ---
From:
Sent: 02 January 2020 15:01
To:
Subject: RE: FOI2019/02545 [OFFICIAL-SENSITIVE]
Thanks
, this needs to go to Press Office, so I’ll send it across – who needs to be
copied in to assist in answering any questions Press Office may have?
Noted that it’s gone to your Director for info.
| FOI Policy Adviser
Freedom of Information Team | Solicitor's Office and Legal Services
HMRC |
| Canary Wharf | 10 South Colonnade | London | E14 4PU
Hello
I would suggest that this information is "sensitive".
I assume that due to the nature of the contract with Cap i.e. no name, we would not release details
related to individuals.
Regards
CDIO | CUSTOMER STRATEGY AND TAX DESIGN GROUP (CSTD)
|
From:
Sent: 23 December 2019 12:16
To:
Cc:
Subject: FW: Case FOI2019/02545 -
- assigned to you for allocation [OFFICIAL-
SENSITIVE]
We have been made aware of this FOI request today, which is a bit late in the day as it has been with
HMRC since 4 December; the deadline for a response is 6 January 2020.
Qs. 1,2 and 5 will be covered by the information we intend to publish that
has been leading
on, so we can withhold that information using an exemption (s21 Intend to publish). Qs. 3 and 4
relate to contractors working on the dev team. Do we hold the information that has been asked for?
If so, can it be shared or is it commercially sensitive?
11
--- PDF page 12 ---
I note from your o-o-o that you are not around until the new year. I will send a reminder on 2
January so this moves up your Inbox.
Thanks
Policy Advisor | Off-Payroll Reform Programme | HMRC |
100 Parliament Street, London
SW1A 2BQ |
Thanks
We’ll keep it narrow to just the dev team as that is what the requestor is interested in.
Policy Advisor | Off-Payroll Reform Programme | HMRC |
100 Parliament Street, London
SW1A 2BQ |
From:
Sent: 23 December 2019 12:38
To:
Cc:
Subject: RE: Case FOI2019/02545 -
- assigned to you for allocation
Hi
Please see below breakdown of makeup of scrum team which was typical throughout enhancement
development. As for whether in or out of IR 35 not sure this would be sensitive information and will
have to wait until
returns.
Also, would the policy teams and project teams who also worked on the enhancement not be
included in this response? The scrum team by no means worked in isolation on this iteration.
Hope this helps.
12
--- PDF page 13 ---
| Customer Strategy and Tax Design- Policy Driven Change
Programme | Benton Park View | Newcastle-upon-Tyne | NE98 1ZZ |
13
--- PDF page 14 ---
From:
Sent: 25 November 2019 13:51
To:
Cc:
Subject: NEXT CEST WORK TO BE DONE - FOI prep [OFFICIAL-SENSITIVE]
Dear all
Firstly well done to all for getting CEST out. We now have more work to do to land it, and
hopefully you will have some time now to do so, This is my early thinking.
If you are in the ‘to’ list you will have an action on the spreadsheet.
Introduction
The FOI team is keen to head off the inevitable FOI requests about the enhancements to
CEST. They have a policy of doing this:-
‘Transparency and freedom of information releases’.
https://www.gov.uk/government/publications/your-case-title
This new approach is resultant from a six month trial approved by ExCom in July 2018 to
improve the media reaction to FOI releases and has been used successfully over the past
year on high profile issues including Honours probity checks and the HICBC penalty review
Our next step is to get information on line as soon as possible after purdah ends and
we have a new government, In theory none of the information should relate to the
policy announcement on off payroll from April 2020,
NEXT STEPS
Most of you will already have started the compiling of information to be released as we have
been discussing this for some time and I note that
has already put some documents up
on team which we can use.
Please note that all the suggested documentation is subject to debate over what
should/could be released. We will need a meeting with sols and
on the FOI team with
Policy and Tech to decide if it is appropriate for the information to be released,
I have attached documents for your comments.
1. a mocked up version of what an FOI release would look like.
2. an excel spreadsheet of what my analysis of previous FOIs suggest we should
consider releasing (subject to FOI rules)- PLEASE let me know if I have missed
anything.
14
Annex B - FOI2020/00028
--- PDF page 15 ---
The mocked up version has links to other documents which also have links –
will that
work?
I have taken the report that
did on the Assurance work and tweaked it to encompass
more of what we need to cover, I envisage
adding to this so that we just have one
landing space for the testing accuracy and general assurance activity.
I will put in a call for us all later in the week to discuss the general approach and the
collection of the data. We will need to have a more detailed call on whether the documents
should/can be released call next week . I have redacted names where I could on the
information hyperlinked to the mocked up page.
Happy to discuss separately though.
|Tax Policy Advisor|IPD Employment Status & Intermediaries Policy |
|
100 Parliament Street, London SW1A 2BQ |
15
--- PDF page 16 ---
Annex C - Legal position
Section 40
Personal information
Some of the information within the requested information relates to an identifiable individual.
This information is considered personal data under the General Data Protection Regulation
(GDPR). It is therefore exempt from disclosure under section 40(2)(b) of the FOIA, on the
basis that release would contravene the data protection principles (FOIA section 40 (3A)(a)).
This part of the section 40 exemption is absolute and we are not required to consider any
public interest arguments for and against disclosure.
Article 5(1)(a) of the GDPR requires that personal information is processed lawfully, fairly
and in a transparent manner; processing includes disclosure. For information to be
processed fairly, individuals should be aware of the purposes for which their personal
information may be used or disclosed and should be made aware of any “non obvious”
purposes. HMRC employees would reasonably expect that their personal data would be
held in confidence and not disclosed to the public under the FOIA. Disclosure would
therefore breach the first data protection principle as it would be unlawful.
Such information is therefore exempt from disclosure under section 40(2) of the Freedom of
Information Act 2000 (FOIA), by virtue of s40(3)(a)(i). This part of the exemption applies
applies where the disclosure of the information to any member of the public would
contravene any of the principles of the Data Protection Act 1998 (DPA). It is an absolute
exemption and I am not therefore required to consider any public interest arguments for and
against disclosure.
The first step when considering applying this exemption is to determine whether the withheld
information constitutes personal data as defined by the DPA. Secondly, only if we are
satisfied that the requested information is personal data, must we establish whether
disclosure of that data would breach any of the data protection principles under the DPA.
The two main elements of personal data are that the information must ‘relate’ to a living
person and that the person must be identifiable. Information will relate to a person if it is
about them, linked to them, has some biographical significance for them, is used to inform
decisions affecting them or has them as its main focus.
Whether an individual might reasonably expect to have their personal data released
depends on a number of factors. These include whether the information relates to an
individual in their professional role or to their private life, and in the case of employees, the
individual’s seniority or whether they are in a public-facing role.
In this case, the withheld information relates to junior staff members below the Senior Civil
Service (SCS). HMRC officials holding positions of this rank would not expect that their
personal data to be publicly disclosed. In addition, the named individuals involved have not
consented to the release of information.
16
--- PDF page 17 ---
Section 44
Taxpayer confidentiality
When reviewing an FOIA request, we are required to be applicant and purpose blind. This
applies even if a request is from the person to whom the information relates. The motive
behind a request has no bearing on our consideration. A response under the act is
effectively being released to the world, not just the person making the request. We look at a
request and say - would we tell the world something about an individual or entity if we
answered it?
Section 44 of the FOIA applies when the requested information, if held, would be prohibited
from disclosure by another piece of legislation.
Section 44 FOIA (prohibitions on disclosure) states:
(1) Information is exempt information if its disclosure (otherwise than under this Act) by the
public authority holding it-
(a) is prohibited by or under any enactment,
(b) is incompatible with any EU obligation, or
(c) would be punishable as a contempt of court.
In this instance, section 18(1) of the of the Commissioner’s for Revenue and Customs Act
2005 (CRCA) gives HMRC a duty of confidentiality which applies to all information it holds in
connection with its functions.
Although there are exceptions to section 18(1) contained in sections 18(2) and (3) CRCA,
section 23 CRCA was amended by section 19(4) of the Borders, Citizenship and
Immigration Act 2009 to make clear that sections 18(2) and (3) are to be disregarded when
considering disclosure of revenue and customs information relating to a ‘person’ under the
FOIA.
Section 23(1) CRCA states:
‘Revenue and customs information relating to a person, the disclosure of which is prohibited
by section 18(1), is exempt information by virtue of section 44(1)(a) of the Freedom of
Information Act 2000…..if its disclosure
(a) would specify the identity of the person to whom the information relates, or
(b) would enable the identity of such a person to be deduced.
(2)Except as specified in subsection (1), information the disclosure of which is prohibited by
section 18(1) is not exempt information for the purposes of section 44(1)(a) of the Freedom
of Information Act 2000.’ Therefore, under section 23(1) CRCA information prohibited from
disclosure by virtue of section 18(1) CRCA is specifically designated as exempt from
disclosure under section 44(1) FOIA if its disclosure would identify a ‘person’ to whom it
relates or would enable the identity of such a ‘person’ to be deduced.
The term ‘Person’ in this context covers both individuals and legal entities (see schedule 1 of
the Interpretation Act 1978). What this means in practice is that it is much wider than say the
Data Protection Act, which refers to ‘living individuals’.
The definition of information relating to a ‘person’ is also set out in section 19(2) CRCA as
follows: “….revenue and customs information relating to a person means information about,
acquired as a result of, or held in connection with the exercise of a function of the Revenue
and Customs….”
Further, section 19(4) of the Borders, Citizenship and Immigration Act 2009 amended
section 23 of the CRCA and states that we must disregard any permissive rights when
considering an FOIA request.
17
--- PDF page 18 ---
Section 22
We can confirm we hold information covering the number of contractors involved in the
CEST enhancement project, but it is being withheld under section 22(1) of the FOIA as it will
be published by April 2020.
Section 22(1) applies if three conditions are met:
a) there was an intention to publish at the time the request was received; and
b) it is reasonable to withhold the information until the planned publication date, and
c) it is not in the public interest to disclose the information until the intended publication date.
In considering (b) and (c) above we have taken account of the following factors.
We accept there is a clear public interest in government departments being as open and
transparent as possible, to increase accountability and inform public debate. Therefore, it is
reasonable, and in the public interest, that customers are aware of the steps we took to de-
velop the enhancements to the CEST service.
However, we consider that that interest will be met by our already planned publication. Al-
lowing authorities, within reason, to determine their own publication timetable to deal with
the necessary preparation and administration involved in publication, as well as ensuring au-
thorities can plan publication activity to make the best use of public resources is also in the
public interest. Premature disclosure could undermine any relevant pre-publication proce-
dures, such as consultation with or pre-disclosure to particular bodies.
Taking these factors into account we consider that, on balance, it is in the public interest to
withhold the information within scope of your request until the intended publishing date. We
consider this outweighs the public interest in disclosure currently.
18
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ATTACHMENT: Dr_Campbell_FOI2020_00028_PIT.pdf
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--- PDF page 1 ---
Freedom of Information Team
S1715
6 Floor
Central Mail Unit
Newcastle Upon Tyne
NE98 1ZZ
Dr Colin Iain Campbell
By email: request-624890-
ad76de9e@whatdotheyknow.com
Email
foi.request@hmrc.gov.uk
Web
www.gov.uk
Date: 4 February 2020
Our ref:
FOI2020/00028
Dear Dr Campbell
Freedom of Information Act 2000 (FOIA)
Thank you for your request, which was received on 7 January, for the following information:
“1. In relation to the original FOI request
(a) All emails, messages, minutes, and information in a recorded format relating to the
response to my original FOI request of 3rd of December. Including requests for the source
material , and discussions on which exemptions might apply. The full subject and date and
time of any emails is to be considered within the scope of the request, all names which can
be disclosed due to seniority should be and where not disclosed due to Section 40(2)
fairness considerations the job title/civil service rank should be disclosed in all instances.
(b) Could any written evidence of the intent to publish briefing notes provided to those
updating the tool and any meeting minutes please be disclosed, OR please clearly confirm if
this information is not held.”
We can confirm that we hold information relevant to your request. However, we need to
extend the 20 working day time limit for responding to your request.
This is because some of the information you have requested is being considered as exempt
from disclosure under section 22(1) of the Act. This exemption covers information that is
intended to be published in the future. The Freedom of Information Act gives the public a
right of access to information held by public authorities. However, sometimes a request
seeks data we already plan to publish. The Information Commissioner recognises that
dealing with such requests can place a strain on resources and get in the way of delivering
mainstream services. For this reason the section 22(1) exemption allows us to refuse these
requests. It is important to note that the exemption does not require a set publication date to
be in place.
Section 22 is subject to a public interest test and HMRC has not yet reached a decision on
whether the balance of the public interest favours disclosure of this information.
Under section 10(3), when public authorities have to consider the balance of the public
interest, in relation to a request, they do not have to comply with the request until such time
as is reasonable in the circumstances. Owing to the need to consider where the balance of
the public interest lies, in relation to your request, we will not be able to respond in full within
20 working days.
Information is available in large print, audio and Braille formats.
Text Relay service prefix number – 18001
--- PDF page 2 ---
I hope to provide you with a full response by 3 March 2020 at the latest.
If you are not satisfied with this reply you may request a review within two months by
emailing foi.review@hmrc.gov.uk, or by writing to the address at the top right-hand side of
this letter.
If you are not content with the outcome of an internal review you can complain to the
Information Commissioner’s Office.
Yours sincerely,
Freedom of Information Team
2
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ATTACHMENT: Dr_Campbell_IR2020_00026.pdf
TEXT_FILE: Dr_Campbell_IR2020_00026.pdf.txt
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--- PDF page 1 ---
Information is available in large print, audio and Braille formats.
Text Relay service prefix number – 18001
Freedom of Information Team
S1715
6 Floor
Central Mail Unit
Newcastle Upon Tyne
NE98 1ZZ
Dr Colin Iain Campbell
By email: request-624890-
ad76de9e@whatdotheyknow.com
Email
foi.request@hmrc.gov.uk
Web
www.gov.uk
Date: 4 March 2020
Our ref:
IR2020/00026
Dear Dr Campbell
Freedom of Information Act 2000 (FOIA)
Thank you for your request for an internal review, which was received on 7 January:
“2nd email sent correcting a miner typo
…should read:
------>"Please disclose what percentage of contractors working ON the
------>CEST tool update were deemed inside IR35( i.e. the Off Payroll
------>Rules/Chapter 10 of Part 2 of ITEPA 2003)". <-----
…
1st email:-
Firstly Happy New Year to the FOI team at HMRC. Many thanks for the important public
service you provide.
Please pass this on to the person who conducts Freedom of Information reviews.
I am writing to request an internal review of HM Revenue and Customs's handling of my FOI
request 'Testing information for CEST update'.
I wish to request a review into the handling of questions 1 ,2 and 5, as set out below and to
alter the request in respect of 3 and 4 such that you should be enabled to comply without
there being any risk regarding confidential information and request that you review your
response in light of the revised request.
NB - NOTE ALSO THE ADDITIONAL FOI REQUEST AT THE END.
In general in relation to the attempt to claim a Section 22(1) exemption - the Commissioner
is very clear that in general the longer the time to intended publication the less likely the
exemption is to apply. You have set an EXTREMELY long window for publication which falls
long after the promised review of IR35 by all major parties, including the Tories/HM Gov.
This will prevent proper scrutiny being brought to bear on the updates to the tool during the
review - indeed the reason this information is sought is with view to feeding into All Party
Parliamentary Groups, consultations, and indeed this very review. It is our view that, given
the lengthy time to publication Section 22(1) is highly unlikely to apply (eg See ICO Decision
notice FS5012803 Paragraph 60 which states
--- PDF page 2 ---
2
"
..However, in considering Section 22(1)(c) timing is a key factor in considering what is
reasonable in the circumstances. The Commissioner is of the view that, in general, the
sooner the intended publication date the better the case for maintaining the exemption "
The converse is clearly pertinent here and very clearly backed up by the ICO's guidance on
Section 22. We accordingly feel the exemption does not apply, however please additionally
see below and respond to the questions under each itemised point.
With respect to 1, 2 and 5, for which a Section 22 (1) exemption has been applied the
following representations and points should form part of an internal review of this decision
please, to avoid confusion with the initial request numbers these points have been given
letters rather than numbers - a public interest representation covering all of these points
follows:
(a). Could you confirm to what extent HMRC intended (prior to 3rd December 2019) to fully
publish the entirety of each of the following, or whether HMRC intended to select appropriate
information from the item in the bullet point point to publish at a later date. At what stage
before publication will such a selection be made?
(i) Additional Testing Records/Testing Documentation relating to the revision of the tool.
-> You should clearly confirm whether or not you hold information within the scope of this
point please.
->If held will the entirety be published or a selection of relevant parts?
-> If the latter when will this selection be made?
->Where does HMRC intend to publish this information, and to what audience?
(ii)A list of case law cases against which the tool was tested.
-> Clearly confirm whether or not information within the scope of this specific point is held
please.
->If held will the entirety be published or a selection of relevant parts?
->If the latter when will this selection be made?
->Where does HMRC intend to publish this information, and to what audience?
IMPORTANT - HMRC has previously published a list of cases which the old CEST tool
version was tested against IF THIS HAS NOT CHANGED then SECTION 22(1) -->
CANNOT <-- apply as once information has been published before the exemption CEASES
TO APPLY.
Thus it is vitally important that HMRC disclose whether additional cases were used in
testing, and if not, then Section 22(1) does NOT apply HMRC is under a statutory duty to
either disclose the list OR, if a Section 21 exemption is claimed to provide Advice and
Assistance to locate the list under Section 16. Individual characteristics of the requester are
an important consideration in deciding whether information is 'Reasonably Accessible' under
Section 21 and I would point to the fact that, as a dyslexic, the information may be more
difficult for me to locate than others. There is caselaw authority in Arnes v ICO & Cabinet
Office (EA/2007/00110) that in situations where the individual characteristics of the
requester make locating the information more difficult (the example is of a large database,
such as is the case with the whatdotheyknow website) the public authority is under a duty
arising from FOIA Section 16 to provide a link.
(iii) briefing notes provided to those updating the tool and any meeting minutes discussing
what questions should be added.
It seems somewhat dubious that a decision to publish this would have been taken before
receipt of the FOI, as such information relating to the development and briefing of teams is
not routinely published unless specifically requested. It is reminded that a publication
decision must have been taken prior to the request for the exemption to apply and deciding
to publish the information after the request as a means of avoiding disclosing information
until a later date would not work.
PLEASE NOTE THE ADDITIONAL FOI REQUESTING WRITTEN EVIDENCE OF AN
--- PDF page 3 ---
3
INTENT TO PUBLISH THIS INFORMATION AFTER THE INTERNAL REVIEW REQUEST.
-> Clearly confirm whether or not information within the scope of this specific point is held
please.
->If held will the entirety be published or a selection of relevant parts? All meeting minutes?
All briefing notes to developers?
->If relevant parts when will this selection be made?
->Where does HMRC intend to publish this information, and to what audience?
PUBLIC INTEREST REPRESENTATION:
We are astonished that HMRC feels it can legitimately conclude that it is reasonable to delay
publication of such information when all political parties have committed to a review of
IR35/Off Payroll prior to implementation in April 2020, no delay has as yet been announced
to this date, and the information is explicitly sought to brief MPs, feed into the Loan Charge
All Party Parliamentary Group, inform submissions to the promised review and any other
consultations. HMRC's decision to delay publication for a long time, and until after legislation
has been passed the advisability of which might be influenced by the information sought will
have the effect of stimying debate and reducing the quality of the promised review. This will
have repercussions for the entire gig economy - both workers and clients who may end up
having to use a tool which may not be fit for purpose.
It will be noted that for Section 22 to apply under Section 22(1)(c) the decision to withhold
must be 'reasonable in all circumstances' - withholding information vital to public debate on a
matter so important all major political parties have promised a review, in some cases as a
manifesto commitment, until after the review itself has occurred and the legislation itself has
been implemented is very unlikely to be considered in all circumstances reasonable, nor in
the Public Interest, as it could lead to a defective product being used en masse, and
uninformed legislative decisions being made. I would specifically point out that the
circumstances surrounding publication (that it could result in less scrutiny being prior to
legislation being passed) are important on a statutory level, and that impending IR35 review,
upcoming IR35 forum meetings, the upcoming budget, and planned legislation to roll out
Chapter 10 of Part 2 of ITEPA 2003 to the private sector are all highly pertinent
Circumstances within the meaning of 22(1)(c). This should be considered alongside the very
long time before HMRC proposes publishing this. Please see also ICO Decision notice
FS5012803 at paragraph 60 which states
"
..However, in considering Section 22(1)(c) timing is a key factor in considering what is
reasonable in the circumstances. The Commissioner is of the view that, in general, the
sooner the intended publication date the better the case for maintaining the exemption "
Given all of the above I would suggest that the decision to apply the exemption is so
irrational that it may well be Wednesbury unreasonable - in that no reasonable person acting
reasonably could have made a decision to withhold the information until after the above
events where they are acting appropriately and considering the Public Interest as required
by the Act (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948)
1 KB 223).
--------------
Regarding questions 3 and 4 and HMRC's attempt to claim that a Section 40 exemption
(Personal Data) applies to this.
Firstly, and apologies if this is somewhat pedantic, I would like to correct HMRC factually on
the basis of the exemption. I can confirm that I am NOT the data subject here. Section 40 is
ONLY an absolute exemption with respect to the data subject themselves own data (with
respect to which Section 40 is an absolute exemption, this specifically arises under Section
40(1)...which does not apply).
You have not claimed Section 40(1) but rather Section 40(2), which given I am not a data
subject I would agree is the appropriate section to consider. This is, contrary to what is
stated, a qualified exemption - subject to a Fairness Test, rather than a public interest test.
--- PDF page 4 ---
4
I am, however keen to enable you to honour your data protection duties and would thus
modify items 3 and 4 condensing them into a single information request and avoiding the
issue HMRC is attempting to cite as follows, substitute questions 3 and 4 for:
------>"Please disclose what percentage of contractors working no the
------>CEST tool update were deemed inside IR35( i.e. the Off Payroll
------>Rules/Chapter 10 of Part 2 of ITEPA 2003)". <-----
There should be no risk that the new question format would identify any worker as only a
percentage is sought.
NOTE that for the subject to be identified they need to be identifiable on the basis of publicly
available information the exemption will not apply where use of internal information only held
by HMRC might enable the identification of the worker (eg if there were only one worker -
only HMRC/the worker would know this and a question of identification and thus breach of
data protection principles on the basis of a 100% statistic would therefore not arise).
We trust that this enables your compliance with this section and that the qualified Section
40(2) exemption/fairness test are no longer an issue preventing disclosure failing which we
would request that you provide Advice and Assistance as to how to prevent the exemption
being engaged pursuant to your Section 16 duty.
A full history of my FOI request and all correspondence is available on the Internet at this
address: https://www.whatdotheyknow.com/request/testing_information_for_cest_upd”
Internal review
The purpose of a review is to assess how your request was handled in the first instance and
to determine whether the original decision given to you was correct.
We received your request on 3 December 2019 and responded by email on 6 January 2020.
This was within the statutory deadline in compliance with section 10(1) of the FOIA.
The response also set out our review procedure and your right to complain to the
Information Commissioner, as required by section 17(7) of the FOIA.
Review response
We have received a large number of requests for information under the FOIA in respect of
the development of the enhanced Check Employment Status Tool (CEST). The majority of
these ask for similar information and, in such circumstances, HMRC’s Freedom of
Information Team will proactively publish information on GOV.UK to make the information of
interest more readily available.
Immediately following publication of the enhanced CEST on 25 November 2019, the
Freedom of Information Team agreed that information relating to the enhancement project
would be published on GOV.UK. The email confirming this has been provided to you in a
separate letter.
This publication will include but is not limited to: stakeholder interaction, scoping work,
testing against litigation cases, usage data, development costs and details of any
recommendations that were not addressed.
Section 22 provides that:
(1) Information is exempt information if—
(a) the information is held by the public authority with a view to its publication, by the
authority or any other person, at some future date (whether determined or not),
--- PDF page 5 ---
5
(b) the information was already held with a view to such publication at the time when
the request for information was made, and
(c) it is reasonable in all the circumstances that the information should be withheld
from disclosure until the date referred to in paragraph (a).
I can advise that the information requested in your questions 1, 2 and 5 forms part of a
planned publication which was decided prior to the receipt of your request. The information
requested is specific to the enhanced CEST and therefore has not been released previously.
Information Commissioner’s Office guidance provides that although a public authority must
hold the information at the time of the request with a view to its publication, the exemption
does not require a set publication date to be in place. It is also provided that if there is a
publication deadline, but publication could be at any date before then section 22 may still
apply.
It was and still is the intention for this information to be made available by the end of April
2020 and we will send you a link to this information when it is published. I realise that this
could have been better explained in our initial letter to you where you were provided with a
twelve-month publication deadline.
I accept that there is a broad public interest in the Government’s work and disclosure would
be consistent with the Government’s wider transparency agenda. This makes the
Government more accountable to the electorate and increases trust in the democratic
process.
However it is an important principle that public authorities should be able publish information
in a manner, form and timing of their own choosing. HMRC official’s time would be better
spent compiling, verifying and preparing for publication so that everyone gets to see the
information at the same time as opposed to dealing with individual requests.
Officials require time prior to publication to enable the proper analysis of the CEST
enhancement project to be prepared and scrutinised through internal review. It is in the
public interest that the effectiveness of the project is presented in its entirety to ensure that
maximum value is achieved from the public investment.
On balance I conclude that the public interest favours maintaining the exemption on the
basis that it is intended that the information will be made available in the next month.
However, if for any reason this information is not published by then, I would be happy to
reconsider the public interest in disclosure.
Turning to your questions three and four, I note that rather than challenge the appropriate
use of section 40 to withhold the information, you have instead reworded your request to
such a format that we may be able to disclose.
HMRC holds a figure for the total number of contractors, i.e. non-HMRC staff, who were
involved in the CEST enhancement project. It may be of interest that this information will be
included in the upcoming publication.
In previous correspondence you have been advised that from this total, the number of
contractors engaged through a personal service company, within the scope of the off-payroll
working rules and therefore the remit of your third question, is less than or equal to 5. Your
new question has asked for the percentage of these contractors which were subject to the
off-payroll rules.
I have concluded, that owing to the small number of individuals involved, to provide a
percentage breakdown would allow a person to deduce the denominator, which is the
previously withheld information at question three as well as the information at question four.
On this basis I consider this information exempt from disclosure for the reasons previously
provided.
--- PDF page 6 ---
6
If you are not content with the outcome of an internal review you can complain to the
Information Commissioner’s Office.
Yours sincerely,
Freedom of Information Team
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ATTACHMENT: Dr_Colin_Iain_Campbell_FOI2019_02545.pdf
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Information is available in large print, audio and Braille formats.
Text Relay service prefix number – 18001
Freedom of Information Team
S1715
6 Floor
Central Mail Unit
Newcastle Upon Tyne
NE98 1ZZ
Dr Colin Iain Campbell
By email: request-624890-
ad76de9e@whatdotheyknow.com
Email
foi.request@hmrc.gov.uk
Web
www.gov.uk
Date: 6 January 2020
Our ref:
FOI2019/02545
Dear Dr Campbell
Freedom of Information Act 2000 (FOIA)
Thank you for your request, which was received on 3 December, for the following
information:
“HMRC's CEST tool has been updated in November and now includes additional questions.
Please disclose:
1. The additional testing records/documentation relating to the revision of the tool.
2. A list of which cases from the case law the tool was tested against.
3. How many contractors were engaged to update the tool.
4. How many of the contractors working on the tool were deemed to be inside IR35.
5. A copy of any briefing notes provided to those updating the tool and any meeting minutes
discussing what questions should be added.”
We can confirm we hold some of the information you have asked for in respect of questions
1, 2 and 5 but it is being withheld under section 22(1) of the FOIA as it will be published
within the next 12 months.
Section 22(1) applies if three conditions are met:
a) there was an intention to publish at the time the request was received; and
b) it is reasonable to withhold the information until the planned publication date and
c) it is not in the public interest to disclose the information until the intended publication
date.
In considering (b) and (c) above we have taken account of the following factors.
We accept there is a clear public interest in government departments being as open and
transparent as possible, so as to increase accountability and inform public debate.
Therefore, it is reasonable, and in the public interest, that customers are aware of the steps
HM Revenue and Customs (HMRC) took to develop the enhancements to the Check
Employment Status for Tax (CEST) service. However, we consider that that interest will be
met by our already planned publication. Allowing authorities, within reason, to determine
their own publication timetable so as to deal with the necessary preparation and
administration involved in publication, as well as ensuring authorities can plan publication
activity so as to make the best use of public resources is also in the public interest.
--- PDF page 2 ---
2
Premature disclosure could undermine any relevant pre-publication procedures, such as
consultation with or pre-disclosure to particular bodies.
Taking these factors into account we consider that, on balance, it is in the public interest to
withhold the information within scope of your requests in questions 1, 2 and 5 until an
appropriate point on or before 31 December 2020. We consider this outweighs the public
interest in disclosure at this time.
We do hold information to answer questions 3 and 4, which we understand to mean the
number of contractors engaged to update the CEST tool who could be subject to the off-
payroll working rules (IR35). However, the information is being withheld under section 40(2)
of the FOIA, on the basis that disclosure would contravene the data protection principles (as
described under FOIA section 40 (3A)(a)). This part of the section 40 exemption is absolute
and we are not required to consider any public interest arguments for and against
disclosure.
When a request for information involves five people or fewer, HMRC must consider whether
releasing such detail could lead to the identification of individuals and whether such
disclosure would breach our statutory obligations under the General Data Protection
Regulation (GDPR).
Article 5(1)(a) of the GDPR requires that personal information is processed lawfully, fairly
and in a transparent manner; processing includes disclosure. Fairness means personal data
should only be handled in ways that people would reasonably expect and not used in ways
that have unjustified adverse effects on them. Contractors would reasonably expect that
their personal data would not be put into the public domain. Such a disclosure would be
unfair processing.
As we believe providing actual numbers could lead to identification of the individuals
concerned, the information you have asked for under questions 3 and 4 has been withheld.
If you are not satisfied with this reply you may request a review within two months by
emailing foi.review@hmrc.gov.uk, or by writing to the address at the top right-hand side of
this letter.
If you are not content with the outcome of our internal review you can complain to the
Information Commissioner’s Office.
Yours sincerely,
Freedom of Information Team
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ATTACHMENT: FOI2020_00503_FOI_response.pdf
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--- PDF page 1 ---
Information is available in large print, audio and Braille formats.
Text Relay service prefix number – 18001
Freedom of Information Team
S1715
6 Floor
Central Mail Unit
Newcastle Upon Tyne
NE98 1ZZ
Dr Colin Iain Campbell
By email: request-624890-
ad76de9e@whatdotheyknow.com
Email
foi.request@hmrc.gov.uk
Web
www.gov.uk
Date: 31 March 2020
Our ref:
FOI2020/00503
Dear Dr Campbell
Freedom of Information Act 2000 (FOIA)
Thank you for your request, which was received on 2 March, for the following information:
“Please disclose copies of all public interest representations you have received about this
FOI request. For the avoidance of doubt personal data about the providers of these
representations is not sought (and time taken to redact such information under Section 40 is
not a consideration with respect to the Section 12 Costs Limit).”
A copy of the requested information has been made available within the annex attached to
this letter.
The names and contact details of our staff and third parties have been redacted under
section 40(2) FOIA. We consider that disclosure of this information would be in breach of our
obligations under the Data Protection Act 2018: the duty to process data fairly and lawfully
(the first principle).
Article 5(1)(a) of the GDPR requires that personal information is processed lawfully, fairly
and in a transparent manner; processing includes disclosure. Fairness means personal data
should only be handled in ways that people would reasonably expect and not used in ways
that have unjustified adverse effects on them. Any individual would reasonably expect that
their personal data would not be put into the public domain. Such a disclosure would be
unfair processing.
If you are not satisfied with this reply you may request a review within two months by
emailing foi.review@hmrc.gov.uk, or by writing to the address at the top right-hand side of
this letter.
If you are not content with the outcome of an internal review you can complain to the
Information Commissioner’s Office.
Yours sincerely,
HMRC Freedom of Information Team
--- PDF page 2 ---
From:
Sent: 25 February 2020 19:28
To:
@hmrc.gov.uk>
Subject: Quote ref: FOI2020/00028
Email
@hmrc.gsi.gov.uk
Quote ref: FOI2020/00028
Dear
,
I understand response to this FOI request has been delayed while HMRC considers the public interest. I strongly
believe that it is in the public interest to publish the requested information and as soon as possible in view of the
planned extension to the private sector in April of the revised IR35 approach.
Many private sector organisations and individual service providers are confused and uncertain about this change
and in particular the use and accuracy of the CEST tool. It is perverse and illogical to suggest that it could be in
the public interest to not publish this information.
Kind Regards,
From:
Sent: 20 February 2020 10:16
To:
@hmrc.gov.uk>
Subject: FOI Request ref: FOI2020/00028
Dear
t,
I understand that you hold FOI compliance responsibilities within HMRC. I am writing to request that
the above FOI request is addressed urgently, as this is matter that is both time-critical and of
significant public interest. The accuracy and validity of the CEST tool is potentially of relevance to the
approximately 2 million UK citizens working under terms that may fall either into “contract for
services” or “employment” categories. I cannot see any valid public interest or other defence for
failing to comply with the request in a timely manner. Time criticality arises from the Government’s
current intent to enact changes to the off payroll working regulations under the Finance Act (2019)
on 6th April 2020.
I trust this will receive your due consideration and urgent action. If you are not the correct recipient
with respect to this request, please forward accordingly with me on copy.
--- PDF page 3 ---
From:
Sent: 17 February 2020 09:32
To:
@hmrc.gov.uk>
Subject: FOI2020/00028
Dear
,
I understand response to this FOI request has been delayed while HMRC considers the public
interest. I strongly believe that it is in the public interest to publish the requested information and as
soon as possible in view of the planned extension to eth private sector in April of the revised IR35
approach. Many private sector organisations and individual service providers are confused and
uncertain about this change and in particular the use and accuracy of the CEST tool. It is perverse
and illogical to suggest that it could be in the public interest to not publish this information.
Regards
From:
Sent: 15 February 2020 21:13
To:
@hmrc.gov.uk>
Subject: FOI2020/00028 - Notes on CEST
Hi
,
I was wondering if at all possible for the above FOI to be actioned with a degree of
urgency at all?
Many consultants such as myself are seeking to grow our business, however a few of
ours clients use CEST while we instead seek impartial legal advice as the to the terms
and day-to-day of our contracts, as members of the FSB this is typically done with
Markel Law and also EGOS.
Our clients using CEST causes some trouble for us as we are not wholly aware of how
this tool is tested, and how it reaches its judgements - for example, if case law has been
used to help it come to its decisions and whether these discussions have been had with
development teams.
If the above FOI could be looked at urgently, it would be much appreciated as we could
then have a real conversation with our clients as to how to complement use of CEST with
advice from their Counsel as well as external professional services firms.
--- PDF page 4 ---
Small business are especially sensitive to these things, and I would hate to lose my
member of staff on account of not knowing the facts of how CEST runs and the decisions
taken to make it come to the decision(s) it does.
--
Warm regards,
From:
Sent: 15 February 2020 20:41
To:
@hmrc.gov.uk>
Subject: Ref: FOI2020/00028
I am writing in reference to your response to the above Freedom of Information (FOI) request and, in
particular, your assertion that consideration needs to be given to the extent to which disclosure is in
the public interest.
With the impending IR35 regulatory changes due in less than 2 months it is imperative that
businesses and contractors are both able to make informed decisions in advance of the date of
change. Withholding any information at this stage with regarding the CEST tool and its testing
cannot and must not be deemed in the public interest. UK Taxpayers, their families, business owners
and shareholders are all impacted by decisions made as regards IR35 Status. If we are to have any
faith in CEST, which is, after all, the official assessment capability to determine status, then absolute
transparency is not only in the public interest, it is morally reprehensible to ask people to make
decisions based on its outputs and be held accountable to those outcomes without providing
absolute clarity as to its working and reliability.
There are many alternative assessments to CEST that provide results that differ to those through the
CEST Tool but align closer to the results that have come through the courts when challenging IR35
rulings. The current situation is untenable and if there is to be confidence in the CEST outcomes then
I ask that you release with immediate effect all testing data that relates to the CEST Tool including all
scenarios tested and modeled so that these can be subjected to independent scrutiny, understood
and the further advice to the parties listed above be issued.
Kinds Regards
From:
Sent: 15 February 2020 19:36
To:
@hmrc.gov.uk>
Subject: CEST / FOI2020/00028
,
--- PDF page 5 ---
I understand that you are considering the case of public interest for the release of CEST test data,
under reference FOI2020/00028.
I would implore you to expedite the release of this information. Our research has shown that the
CEST tool is consistently returning different determinations when compared to third-party tools and
assessments. This should not be the case: regardless of the approach, the outcomes for the taxpayer
should be consistent.
It is of urgent public interest to understand why this discrepancy has arisen: this is impacting many
tens of thousands of taxpayers who have had or will have status determinations in advance of
Aprils's off-payroll reforms. Should the CEST test data contain cases that invalidate third party
assessments, it is imperative that this information is released and those impacted can be re-
assessed. Similarly, if the CEST test data has shortcomings, it is important for stakeholders to work
together in the public interest to resolve this matter promptly.
Kind regards
From:
Sent: 15 February 2020 11:38
To:
@hmrc.gov.uk>
Subject: FOI2020/00028
Dear
It appears that the above FOI request is the subject of a campaign of deliberate obfuscation by
HMRC.
HMRC accepts the information is held but still refuses to disclose it, using various obvious delaying
tactics.
These changes are due to happen in April, HMRC revised the CEST tool with that in mind, and holds
the information asked for in the FOI.
Delayed release of this information will harm the public interest - the House of Lords is currently
investigating the changes to IR35.
Companies and individuals need to prepare for the changes - HMRC promotes CEST but refuses to
show how they developed or tested it until after the rules change.
HMRC needs to release the information it holds without further delay in order to avoid the obvious
conclusion that they are hiding something from us.
--- PDF page 6 ---
From:
Sent: 15 February 2020 10:55
To:
@hmrc.gov.uk>; Request, FOI (HMRC)
<foi.request@hmrc.gov.uk>
Subject: FOI request - ref: FOI2020/00028
,
I believe there is an extremely strong and critical case for hmrc to publish the FOI for the IR35 case involving ref:
FOI2020/00028.
Please get it published immediately, the IR35 proposals are anti democratic and a disgraceful attempt to abuse
power by hmrc.
Regards,
From:
Sent: 15 February 2020 10:35
To:
@hmrc.gov.uk>
Subject: FoI FOI2020/00028
Hi
,
suggested I email my thoughts on "public interest" relating to FoI FOI2020/00028.
Firstly, I believe all information relating to CEST to be of immediate importance to the public,
because the tool is already in use by a great many organisations. If it subsequently turns out CEST
has any flaws which may leave them legally exposed, then they most definitely should know about
that as soon as possible so that they can take action to mitigate. By the time HMRC plan to publish
this information, possible liabilities could run to many thousands of cases, millions of pounds, etc.
However, in relation to this specific FoI, the request was for materials related to the decision to
exempt a previous request. Again, the public interest here is strong. If HMRC is resolute in their
decision to exempt asking about CEST, then given the potential liabilities the public is taking on, we
have a right to know why it is so imperative to exempt our knowledge of those possible liabilities.
I appreciate we're talking about a request that talks about a request, but I remind you this
complexity is of HMRC's making.
Looking forward to your thoughts and hopefully subsequent reconsideration in this matter.
Regards,
From:
Sent: 15 February 2020 10:00
To:
@hmrc.gov.uk>
Subject: Re: FoI Ref: FOI2020/00028
Dear
,
--- PDF page 7 ---
It is with the gravest concern that I have read that the HMRC have rejected a release of testing
results for the HMRCs CEST tool under the Freedom of Information act.
The reason given that it would not be in the public interest?
I cannot think of anything more in the public interest at this very difficult time for all contractors and
firms who use contractors.
The CEST tool has repeatedly been shown to give results that have no basis in law and has been
overturned (or results ignored in the case of the HMRC) on numerous cases in court.
How can the public trust the HMRC if they cannot demonstrate that the CEST tool is fit for purpose?
The key demonstration of which would be to show the robust testing the tool has gone through.
As you well know, the government has promised a review into IR35 and the house of Lords are also
investigating. The CEST tool will form part of that review. It is imperative that the government and
House of Lords have all the evidence to hand to complete their investigations to the level required.
I am shocked that the HMRC would block such crucial information at this stage, and only leaves me
to believe that said evidence either doesn’t exist or is deeply floored.
The HMRC is a public body that works on behalf of the people of this country, please demonstrate
that you understand this relationship and that you care about the public you serve and release this
key information
has requested, immediately.
Yours faithfully,
From:
Sent: 15 February 2020 09:47
To:
@hmrc.gov.uk>
Subject: FOI2020/00028
I write with regard to the above freedom of information request. As someone who operates a ‘PSC’ and has been
unable to find work for 8 months due to IR35, I am at risk of losing my home and my living. The implementation of
off-payroll is having a devastating impact on the interim market. The CEST tool is a critical element of the roll
out. There are many concerns about its suitability, legality, robustness and accuracy.
Challenges to hmrc and the chancellor are at a critical moment ahead of the pending budget in March.
This testing related data will evidence the diligence undertaken by hmrc to prove the robustness, accuracy and
suitability of CEST.
I would urge you to approve this request and expedite its completion.
Thanks
-
.
From:
Sent: 15 February 2020 09:21
To:
@hmrc.gov.uk>
Subject: Quote ref: FOI2020/00028
--- PDF page 8 ---
I am very concerned to see that the HMRC is not willing to provide, based on FOI request, the basis
on which the CEST tool works and the test cases utilised to ensure it is fit for purpose.
It must be both in the Public and HMRC's interest to show that any tooling and guidance provided by
HMRC has been adequately devised, designed and implemented to ensure that the advice is both
correct and accurately aligned with UK law.
It does seem incredible that when all political parties have committed to a review of IR35/Off Payroll
prior to implementation in April 2020, that the CEST tool purports to assess, you are unable to
provide evidence that would be needed to enable the review to be successful.
The idea that once the impact has been made on the UK economy you will then decide to show how
the service works, feels just plain wrong. It will lead to an increasing lack of trust in the HMRC as
well as increased challenges to it, which will mean increased spending of tax payers money and
reduced productivity from the Companies mounting the challenges,
Please provide
with the information he requested forthwith and enable your
departments due diligence and effective assessment and implementation to be shown.
Regards
From:
Sent: 15 February 2020 05:34
To:
@hmrc.gov.uk>
Subject: FOI2020/00028
Dear
,
Regarding FOI2020/00028 I have seen your response regarding whether it is in the public interest.
Given the rushed legislation change being forced on the private sector and the confusion/damage it
is causing to the freelance contract market I must stress that this information is very much in the
public interest.
Timing is critical as it is in the interest of the public to know before any legislation is changed. The
clock is certainly ticking.
Kind regards
Sent from my iPhone
From:
Sent: 28 February 2020 07:59
To:
@hmrc.gov.uk>
Subject: Regarding FOI2020/028
Dear
--- PDF page 9 ---
The above FOI request by
appears to be on hold due to a Section 22 (1) exemption
and requires evidence of public interest in order for it to be responded to.
As a member of the public who is interested in the outcome of this request, I am keen to understand
exactly when the information is expected to be published as mentioned in the response dated 4
February 2020. CEST is a tool which has the power to affect the work of millions of people and it is
therefore imperative that its operation is transparent. To delay release of information obscures that
transparency and reduces trust.
As the legislation is due to change in just over a month’s time, it would be beneficial to the affected
community to receive this information as soon as possible and not at some point later in the year.
Kind regards,
--------------------------------------------------------------------------------
ATTACHMENT: IR2020_00026.pdf
TEXT_FILE: IR2020_00026.pdf.txt
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--- PDF page 1 ---
Information is available in large print, audio and Braille formats.
Text Relay service prefix number – 18001
Freedom of Information Team
S1715
6 Floor
Central Mail Unit
Newcastle Upon Tyne
NE98 1ZZ
Dr Colin Iain Campbell
By email: request-624890-
ad76de9e@whatdotheyknow.com
Email
foi.request@hmrc.gov.uk
Web
www.gov.uk
Date: 19 March 2020
Our ref:
IR2020/00026
Dear Dr Campbell
Freedom of Information Act 2000 (FOIA)
Please note that information relevant to your recent request is now available on GOV.UK at
the following link:
https://www.gov.uk/government/publications/check-employment-status-for-tax-cest-2019-
enhancement
Yours sincerely,
HMRC Freedom of Information Team