IHPA and new legal team reiterate mission

A new and powerful legal team

A new and a powerful legal team is being set up. This is due to new evidence that has come to us and are still coming in. This team will issue PAPLs to the trust within two weeks and a JR will follow. At our third general meeting on the 18/11/2017, Stephen and I will update you on the new strategies. I would advise you to attend the event. It’s best you don’t take any weekend shift on that day. There will also be an educational event with associated CPD points. We stand for you and by you.

Mission statement

The Locum Doctors’ Union (LDU) is an unincorporated association with the mission of supporting locum doctors to secure their rights by negotiation, mediation and litigation, as required. It does this by providing advice, assistance and a network for sharing relevant information and continued professional development. From an NHS Trust’s perspective, the LDU and HPU aims to facilitate a collaborative culture, to bring together the shared objective of ensuring the delivery of first-class patient care.

The benefits of membership

  1. Provide discounted CPD points
  2. Members will get discounted appraiser rates
  3. Medicolegal protection coming in the form of medic HR
  4. Indemnification of members at a rate cheaper than competitors
  5. Protecting members from unfair dismissal and claiming compensation for them
  6. Helping members to do audit using external audit companies
  7. Helping members who are being bullied in their trust
  8. Protecting against future HMRC investigation
  9. Help with MJR

The Healthcare Professionals Union (HPU) was formed on 11 May 2017. Its mission is to support nurses and allied health professionals throughout the United Kingdom by providing pastoral, legal and HR support networks.

LDU and IHPA main aims are:

(i) act to either injunct, halt or achieve an equitable resolution with regards to the latest IR35 guidance

(ii) stop the arbitrary blanketing of all Healthcare professionals into IR35 i.e. ensure that trusts follow guidance and take reasonable care when determining status

(iii) stop the imposition of double NICs i.e. payment of both employer and employee NICs

(iv) stop the “bullying or thinly veiled threats” in letters from trusts and/or agencies

(v) act on the interests of members on issues that are ascribed in the constitution, and/or other issues that might have a direct/indirect negative connotation on the aims and objectives of the union

Objectives:

(i) employ the services of a Public and Employment Law Barrister to consider the facts, and either write a non pre-action letter pending a pre- action letter, and/or legal action; and to look at the reliance and legality of an online tool to determine employment status; and to look at the derogation of powers from a public body (HMRC) to other public bodies and agencies that are neither qualified nor have the administrative resources to adequately carry out the task with reasonable care

(ii) employ the services of a Public and Employment Law Barrister to look at the facts, and write (on the unions behalf) legal representations asking NHSI, Trusts, and/or Agencies to take reasonable care when determining employment status

(iii) employ the services of a Public and Employment Law Barrister to look at the deduction of tax mechanisms of Trusts and/or Agencies at source, with a view to stopping unscrupulous corporate behaviour

(iv) employ the services of a Public and Employment Law Barrister to look at, and draft a legal response to correspondence of a “threatening or bullying” nature from Trusts and/or Agencies

(v) employ the services of a Public and Employment Law Barrister on retainer to provide legal services for the union on an ongoing basis

Healthcare workers who are directly employed by the NHS enjoy full employment rights.

  1. Job security
  2. Pension benefit
  3. Annual leave with pay
  4. Study leave with pay
  5. Stipends for Courses for CPD & ALS
  6. Maternity & Paternity leave
  7. Death in Service Benefits
  8. House purchase benefit / discount
  9. Discounted Appraisals

 

Locum Doctors and nurses under IR35

Locum doctors and independent healthcare workers are now determined as NHS employers only for tax purposes without full employers benefit as listed above.

  1. No job security; job could be terminated within 1hr
  2. No paid annual leave
  3. No pension or retirement plan
  4. No study leave with pay
  5. No Death in Service Benefits
  6. Must pay up to £900 to get appraised by independent appraisal body through agency
  7. Must pay for courses to get CPD points
  8. No paid Maternity & Paternity leave
  9. Not allowed to get NHS staff discount for house purchase
  10. Must work under IR35 as per NHSI
  11. Must pay PAYE tax, Personal NI, Employers NI.
  12. Cannot claim travel expenses
  13. Must pay for their temporary accommodation without reclaiming the expenses under IR35
  14. Will continue to travel long distance to cover for shift without claiming the travel expenses under IR35
  15. Will continue to travel long distances to work where they spend time away from their families in a temporary accommodation without extra income benefit under the new rule (IR35)
  16. Must work under NHS capped rate in most circumstances. This was introduced just about six months ago which has already slashed Locum Doctors income by 30%
  17. Further introduction of IR35 is aimed to completely remove any atom of extra pay benefit for being a Locum Doctor /nurse or a freelancer

We know that the disparity in benefits between the NHS’s permanent staff and its locums justify the higher pay rates that locums earn. But the new rules change everything. The imposition of IR35 treats locum doctors as ‘employed’ for tax purposes. They lose the tax benefits of being self-employed but don’t enjoy any of the benefits of permanently employed NHS staff.

 

Dr Ben Itsuokor
President IHPA/LDU

IR35 Seminar and CPD event

IHPA - LDU MK meeting

The LDU looks forward to welcoming you to its Locum Doctors Conference to be held at Double Tree Hilton, MK Dons Stadium in Milton Keynes, MK1 1ST, on Saturday 18th November from 9.30am - 3.30pm.

 

Agenda
09.30 am Registration and refreshments
10.00 am The President’s Address - Dr Ben Itsuokor
10.10 am IR35 update - Alex Peebles, Legal Counsel
10.50 am Management Training - Teamwork, Development and Problem Solving Part 1
12.20 pm Luncheon and networking
1.30 pm Teamwork, Development and Problem Solving Part 2
3.00 pm Wrap up and fairwells - Dr Ioannis Baraboutis

 

ID Medical is bringing us a hugely discounted CPD accredited management course which will provide you with certification on the day for 4 CPD points to add to your revalidation portfolio. Retailing at £199 we are given this at cost price of £50 inc VAT.

The CPD accredited course is part of the LDU conference and costs £50 inc VAT. The cost for non-members is £200 (the cost of membership) + £50 (event fee).

 

 

NHSI Declare War on Recruitment Agencies and Umbrellas

NHSI Declare War on Recruitment Agencies and Umbrellas!

So NHSI has morphed into HMRC2 now- threatening recruitment agencies that are supposedly using non-compliant umbrella companies. They promise to shut down such agencies and help to bring prosecutions- interesting indeed? They also state: “nurses and locums found to be using these payroll schemes to avoid paying tax and NICs on their full salary, will be reported to their respective bodies NMC and GMC, which may result in their licences to practise revoked IF THEY DO NOT MOVE TO BANK or a COMPLIANT UMBRELLA COMPANY!

Have I missed something here- is NHSI now a department in HMRC or vice versa? And how exactly do they define a non-compliant umbrella- one that does not comply to their policy of blanket IR35.

As for umbrellas and FCSA- are you going b (sic) to take this lying down? Everybody does not want to put their head above the parapet ofcourse- fortunately we’ve heard of an action ensuing.

I wonder if NHSI are acting within their powers or over-reaching yet again. Why can’t public bodies just work within the law- is it that hard? Yet another problem caused by the 2017 Chapter 10 amendments (IR35)!

Stephen Mhiribidi

Head of Legal IHPA/LDU

First posted on Linkedin – 5 October 2017 

Legislation to tackle tax avoidance absolutely necessary

Whilst legislation to tackle tax avoidance is absolutely necessary, it must be transparent.

Healthcare contractors, current situation is akin to dealing with the ‘Mafia’; Don being HMRC, issuing instructions without considering the ramifications. NHS overseeing bodies being the consiglieres – making sure the don’s instructions are carried out, and keeping the mafioso (foot soldiers in provider bases in line). The foot soldiers then arm twist the poor suppliers (the recruiters) to play ball by undercutting the retailers (contractors). The ones paying the dearest price are the end clients (NHS users).

To be clear, I am not saying that they are a mafia- just giving an analogy of how things are playing out. We are getting reports of healthcare contractors been told that they will not be considered for contracts if they dare request an assessment as required by law. We even have in our possession letters from health boards still telling recruiters that ALL healthcare contractors are within IR35 and no representations will be considered.

The poor recruiters who try to do the right thing then lose out to the ones who are playing ball. All the while contractors have either left or reduced their work considerably. Absolute mess!

Stephen Mhiribidi

Head Legal – IHPA/LDU

 

First published on Linkedin – 23 September 2017

Response to Plymouth Herald – Junior Doctors Understaffing in Derriford Hospital

Youtube Banner-headed paper-modified

STATEMENT FOR IMMEDIATE RELEASE TO PLYMOTH HERALD

 

FOREWARD ABOUT IHPA/LDU:

The Independent Health Professionals Association is a Trade Association representing dependently contracting health professionals sometimes referred to as locum tenens.

 

STATEMENT:

We note, with dismay, your article of 15th September regarding the plight of Junior Doctors in Derriford. Sadly, this situation is far from unique or isolated and is being echoed at Trusts up and down the country. Conditions like these cause a dramatic crisis of recruitment and retention and increased staff sickness which exacerbates the problem and, quite understandably, drives up both the demand for staff to take on additional ‘locum’ shifts and increases the value staff across all hospitals will attach to their precious few days of rest (which many give up when locuming). These supply and demand market forces result in increased locum rates, as those taking extra shifts struggle with such conditions as much as permanent staff.

The present situation is a result of long standing lack of investment in our health service with failure to train enough doctors, nurses, and AHPs creating a vicious cycle which drives those already working to leave plus a number of recent factors affecting the locum market which we are very concerned are missing from the narrative here and being reported as if they were a separate story – when in reality this is a matter of cause and effect with the two problems being inextricably linked.

In the example noted, as in many others, you will have noticed an attempt was made to find temporary staff to cover this rota gap which failed.

There are essentially three reasons why finding temporary cover is failing;

The first is that hospitals are now so underfunded and understaffed that working conditions are often atrocious. This is clearly captured in your article – any independent doctor is voluntarily working under the same conditions and, as you can imagine, this makes it harder to find staff willing to do this.

The second factor is that Jeremy Hunt’s rate caps on ‘Agency’ staff represent a spectacular failure to grasp basic market economics, which should be bread and butter for a party with a free market mantra like the Conservatives. Current locum rates are just a symptom – the actual disease is the fact that our substantive colleagues are underpaid, undervalued, and overstretched thanks to Jeremy Hunt’s New Contract spreading an already too slim workforce over even more hours exacerbated by the fact we’ve been undertraining doctors for decades. Many locum shifts are filled by these same doctors taking on additional hours - of course the rates will be high. If we attempt to cap pay below what the free market rates dictate we will not fill shifts as nobody is going to take them.

The third, most recent, and worst of the exacerbating factors relates to an unlawful blanketing of locum health professionals under a hitherto obscure piece of tax legislation referred to as IR35 – which is stopping locums claiming expenses for hotel bills and flights to cover shifts across the country against tax. This often runs to many thousands and even tens of thousands of pounds. Additionally, if the locums took these shifts they would additionally reduce their take home pay by up to 50%. Despite this the actual tax rules themselves have not changed – only the responsibility for who conducts the assessment has been shifted to the Trusts.

This blanketing was initially instigated following a demand from NHSI that all locum doctors should be taxed as employees -ignoring their, often colossal, indemnity insurance, travel and temporary accommodation expenses and not affording them holiday pay, sick pay, maternity pay, protection from unfair dismissal, pensions or any of the other statutorily protected benefits that actual employees enjoy. NHSI advocated a blanket approach which is well recognised to be unlawful in what is, very clear case law. Our organisation, specifically our doctors advocacy group the Locum Doctors Union, commenced the preaction protocol of judicial review against NHS Improvement and forced them to concede the unlawfulness resulting in updated guidance to trusts which told them they had to conduct individual assessments but did not teach them how to do this lawfully.

Trusts are finding this a huge burden administratively and are grappling with incorrect advice issuing from various government departments.  We have taken action to help the Trusts with this task last week by issuing them with detailed guidance, written by our barrister Michael Paulin, on how to correctly comply with their legal duties. If they follow this we are confident most locums would be found to be outside IR35 and Trusts would pay less money overall.

The fact remains that, at 50% below a free market rate due to increased tax, it is extremely difficult for trusts to fill shifts and as a result of this, Jeremy Hunt’s New Contract and Rate Caps rates are being driven up by government policy whilst contemporaneous attempts are being made to prevent trusts paying them. It is almost as if the government wants bad headlines to manufacture consent for the privatisation of the health service.

Lastly the IHPA would like to state that we stand shoulder to shoulder with our substantive colleagues and will continue to advocate for better pay and working conditions for them as being the only definitive way to address the problems within the system.  More money must be put into training new doctors and NHS careers must be made attractive and financially competitive or we will continue to haemorrhage our best and brightest to places that do value and pay their medics properly.

 

END OF STATEMENT

I do hope this helps add some context to the story. Should you wish to run a piece on the guidance itself please get in touch.

Yours faithfully,

IHPA – HPU – LDU send IR35 Guidance to NHS Trusts

Over the past few months, most healthcare agency workers and locum doctors have been unduly subject to costly misapplications of the IR35 rule.

In the first instance, NHSI “inaccurately” instructed NHS Trusts to apply a blanket approach of classifying all workers as being caught inside IR35. The LDU prepared pre-action protocols for a Judicial Review. NHSI capitulated and updated their instructions, requesting NHS Trusts to carry out case by case assessments.

Unfortunately, whether by design or inadequate knowledge, Trusts have struggled to meet their legal obligation in relation to case by case assessments.

We have now written to all NHS Trusts with the included guidance to ensure that all material factors are taken into consideration when carrying out these assessments.

 

Final IR35 Guidance 11 September 2017 public

Not yet a member? Register for access to IHPA benefits

Member? Login for the full document

Direct any queries to info@ihpa.org.uk

LDU/HPU A Case for Locums

We set up the locum doctors union on the 25th of March 2017 to defend the right of the locum doctors.

On the 27th of February, Jim Mackey wrote a letter to all the trust and said – ‘As a result of these new rules, we anticipate that providers will need to ensure all locum, agency and bank staff are subject to PAYE and on payroll from 1 April 2017. He further stated that Providers are strongly encouraged to ensure that all staff are contractually paid via PAYE mechanisms. Where this is not the case, trusts should seek approval from NHS Improvement to pay via alternative means’.

This was wrong and NHSI acknowledged this in their surrender letter to our legal counsel.

The NHS authority is thus under a statutory duty to determine, whether or not if the services were provided under a contract directly between the client and the locum doctor, the worker would be regarded for income tax purposes as an employee of the client or the holder of an office under the client, or not as the case may be. A specific duty is thus created by the new legislation, which is one that requires the public authority in question to reach a conclusion as to whether or not the condition is satisfied in each specific case.

It is obvious that the NHSI acted irrationally in the above regard. Mr Mackey’s purported decision that all locums fall within the new IR35 represent a wholesale violation of its statutory duty. It does not exist within the ambit of their statutory framework.

We sought an interim injunction and a quashing order to Jim Mackey decision. NHSI responded on 19th of may, 2017 but rather ambiguously.

On the 8th of May, we instructed Alex Pebbles of Duncan Lewis solicitors and Michael Paulin with the involvement of a QC – Owain Thomas to challenge the decision of NHSI improvement to apply the IR35 scheme to all locum doctors and allied health workers

On May 26th, 2017, the NHSI granted us concessions but did not notify the Trusts. They however changed their guidance.

On May 27th, 2017, we issued instructions to our legal team to accept the new guidance in settlement of our proposed claim for judicial review. we accepted the NHSI concession and surrender.

In light of the material concession, we agree with NHSI that a claim for judicial review was unnecessary at the time but it can be brought back to the table because we reserve the right with respect to any purported and adverse decision taken by NHS providers.
However, NHSI did not communicate their concession to the trusts and hence this line of action

We have decided to inform all Trusts through our legal counsel about the NSHI concession and we are prepared to send out that concession letter if need be. We have released this guidance and is being sent out to all trust in the UK.

Thank you

Dr Ben Itsuokor
President IHPA/LDU

Tackling the agency spend problem the wrong way

The unlawful imposition of IR35 rules without recourse to challenge or consultation was met with mixed viewsI am sure independent health professionals gasp in astonishment when NHSI state that capping agency spend provides “fairness to substantive staff“. 

Agency and Independent health professionals do not enjoy any of the benefits that their substantive colleagues have

  • Sick pay
  • Paid annual leave
  • Paid maternity leave
  • Paid appraisal and training
  • Death in service benefits
  • Access to NHS pension
  • No recourse to employee protection

and being taxed as an employee means that locum doctors will be put in positions where they have to fund all their work related expenses out of their own pocket.

This statement from an independent doctor captures the mood in the health service.

 

“Independent Doctors support their substantive colleagues, we’re all exposed to the same workplace pressures. More of them are being forced to strike out as Locums because pay and working conditions for substantive colleagues are intolerable. Rate caps won’t solve our substantive colleagues problems but rather deny them relief worker help – in turn making conditions worse and driving rates at which people will take extra hours up, not down. Our rates are governed by workplace environment, and what is driving them up is how horrendous the working conditions are. We will continue to advocate for our substantive colleagues to have better pay and conditions and support those who find the conditions of substantive work so intolerable that they strike out on their own.”

 

There has been a retention crisis in the NHS which has been made worse by the Secretary of State pushing the 7 day working agenda despite reservations from all corners. This led to the junior doctors contract disputes of 2017, the first full scale walkout of doctors in decades. Morale within the NHS is at an all time low, a decline that has been evident for several years.  The root causes of the disaffection remains untackled yet, locum doctors and independent agency workers are seen as the easy scapegoats to apportion the blame on.

Press Release – Locum doctors and nurses succeed in overturning unfair tax rule

Locum doctors and nurses succeed in overturning unfair tax rule

Two unions representing locum doctors, nurses and allied healthcare professionals have today succeeded in overturning a new tax rule imposed by NHS Improvement (NHSI) that risked thousands of agency workers leaving the NHS.

The Locum Doctors Union, who are supported by the Healthcare Professionals Union, an association that represents nurses and allied health care workers, threatened legal action against NHSI after it instructed NHS Trusts across the UK to apply an HMRC Rule known as IR35 to all self-employed NHS healthcare workers.

This change to the contracts of locum doctors, nurses and allied healthcare workers would have potentially resulted in the loss of between 30% to 50% of their income, because they would have been treated as employees rather than as self-employed for tax purposes.

Even though locum healthcare workers would be taxed as employed workers under the purported IR35 rule, they are still not entitled to the same employment rights that all other NHS staff receive.

Zero hours contracts

The NHS relies on locum healthcare workers to plug gaps in GP surgeries and hospitals. Locums have no pension provision, annual leave, study leave, sick leave, maternity leave or death-in-service benefits or job security – effectively placing them on zero hours contracts that can be terminated with a week’s or day’s notice.

Most locum workers operate on short-term contracts, often travelling long distances to work where they are needed and spend time away from their families in temporary accommodation.

Legal action

The Locum Doctors Union and Healthcare Professionals Union threatened legal action by invoking the pre-action protocol for judicial review against NHSI earlier this month after the new rule was imposed on all agency workers without any consultation from April 6.

On Friday, NSHI responded by issuing updated guidance entitled “Working through intermediaries: IR35 Update”, which states that the new tax rule should be imposed on a case-by-case basis, depending on each individual locum’s circumstances, rather than on a blanket basis.

While the new guidance suggested that NHSI is climbing down from imposing IR35 on all agency workers, it at the same time stated that if the rule can be applied to one locum in a particular role then this “will help inform the likely application of the test to another worker in the same role.”

While the two locum unions welcomed the move by NHSI to change its guidance, it did not go far enough, according to Alex Peebles of Duncan Lewis Solicitors, who is representing them.

Alex Peebles said: “The Locum Doctors Union has been forced to initiate the pre-action protocol for a claim for judicial review because of the unlawful and detrimental stance that has been taken by NHS Improvement. The LDU’s barrister, Michael Paulin, was instructed at the earliest stage in proceedings”.

“Locum staff, including locum doctors, nurses and allied Healthcare workers, are dedicated public servants. They often operate under personal service companies because doing so allows them to provide medical services up and down the country to the benefit of patients and the NHS.”

Mr. Peebles wrote to NHSI to ask for further clarity on its guidance before the deadline for filing a claim for judicial review, which is 26 May 2017.

NHS Improvement has today conceded to every substantive point made by the Locum Doctors Union. The new guidance specifically provides that NHS Providers may contract with locum doctors, nurses and allied Healthcare workers via personal service companies. NHSI have also clarified the importance of consulting with individual locum doctors, nurses and allied Healthcare workers, on a case-by-case basis, and of taking account of any representations they may wish to make.

Mr Stephen Mhiribidi and Dr Benedict Itsuokor, the two lead Claimant members of the Locum Doctors Union in the proposed judicial review claim, have stated:

“We are delighted that NHS Improvement has effectively conceded that their previous directive to NHS Providers was unlawful. Our members are dedicated public servants and we hope that, in light of our success in this case, we will be able to continue our service to the NHS without being further penalised in this difficult economic climate.

“We sincerely hope that NHS Providers will welcome this clarification, which means that it will be business as usual for the NHS. We wish to express our gratitude to our solicitor, Alex Peebles, and our barrister, Michael Paulin, both of whom have worked tirelessly to ensure that we obtained a just satisfaction to our claim”.

 

ENDS

 

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