First-tier Tribunal (Tax)

[2010] UKFTT 90 (TC)

TC00401

 

Appeal number   SC/3025/2009

 

Industrial injuries disablement benefit - employed earner’s employment -  contract of service or contract for services - s8 of the Social Security Contributions (Transfer of Functions, etc) Act 1999 –Appeal dismissed

 

FIRST-TIER TRIBUNAL

 

TAX

 

 

 

                                                   Brett Convery                                  Appellant

 

 

                                                                      - and -

 

 

                                 THE COMMISSIONERS FOR HER MAJESTY’S

                                       REVENUE AND CUSTOMS –Income Tax    Respondents

 

 

 

 

 

                                                TRIBUNAL: Barbara King

                                                                       

                                                                       

 

 

 

Sitting in public in Newcastle on 20 January 2010

 

Peter Durkin of the Citizen’s Advice Bureau for the Appellant

 

David Weissand of the Sunderland Appeals and Reviews Unit of HM Revenue and Customs for the Respondents

 

           

 

© CROWN COPYRIGHT 2010

 

 

 

                                                    DECISION

 

1.           The Appellant (Mr Convery) wishes to establish that he was employed by G O’Brien & Sons (Nationwide Demolition Contractors) Limited (the Company) so that he can claim Industrial Injuries Disablement Benefit. The Respondent (HMRC) have issued a decision dated 7 November 2006 under s8 of the Social Security Contributions (Transfer of Functions, etc) Act 1999 to the effect that Mr Convery was not in employed earner’s employment with the Company on 22 October 2002.

 

2.           22 October 2002 was the day that Mr Convery fell from a roof at Cleadon House, Cleadon Village. In a civil claim for compensation brought by Mr Convery against (i) the Company, (ii) Gordon O’Brien, (iii) Michael O’Brien and (iv) Kevin Thomas Donnelly trading as KD Scaffolders, Mr Convery obtained a judgment against (iv) only.

 

3.           I heard oral evidence from Mr Convery, Paul McCaffery, a self employed builder who had worked at Cleadon House, Michael O’Brien, the owner of Cleadon House, his father Gordon O’Brien and Lynne Burlace, an employment compliance officer with HMRC. I had sight of written statements as follows :- Brett Convery signed statements on 24 March 2003 and 29 March 2009; Paul McCaffery on 10 May 2003, 9 June 2003 and 26 March 2009; Michael O’Brien and Gordon O’Brien both produced statements at the hearing which were not signed or dated but were said to have been made recently; Lynne Burlace signed a statement on 24 July 2009 and referred to notes of meetings at which she had been present in 2003.

 

Was G O’Brien and Sons (Nationwide Demolition Contractors) Ltd involved as a contractor in the renovation of Cleadon House,  Cleadon Village? 

 

4.           Gordon O’Brien senior and Michael O’Brien were, in 2002, and still are, both directors of G O’Brien and Sons (Nationwide Demolition Contractors) Ltd. Michael O’Brien was the owner of Cleadon House in Cleadon Village and he had arranged to renovate it for his own personal usage. Coincidentally Cleadon House, Boldon was the registered office address for G O’Brien and Sons (Nationwide Demolition Contractors) Ltd.

 

5.           Mr Michael O’Brien and Mr Gordon O’Brien gave evidence that several contractors were involved in the renovation project but that the Company was not one of them. Mr Michael O’Brien said he had bought an old digger from the Company for his own use at his house and that this piece of equipment did have the Company’s name on it.

 

6.           I find, on balance, that there is no evidence that Michael O’Brien did not account to the Company for any materials or equipment belonging to the Company or bearing the Company’s name, which he used at his private residence.

 

7.           Mr Convery assumed that the Company was involved on the renovation project because he had seen the Company name on the side of equipment at the site. He gave evidence that he thought he was being employed by the Company and that they were dealing with his tax and national insurance contribution. He stated that he could remember very little about his time on site other than that which was written in his statements but he claims now to remember going to the office of the Company to collect money for him and Mr McCaffery. He accepts that he had not asked anyone, either on site or at the office, whether they wished to have his National Insurance number.

 

8.           Paul McCaffery gave oral evidence that he knew that the house was owned by Michael O’Brien but believed Kevin Donnelly junior had told him that KD Scaffolding was doing work for the Company at the site. This was not supported by the statement which Paul McCaffery made on 10 May 2003. In this Paul McCaffery mentions that, he and Mr Convery were working for Mr M O’Brien and he makes no mention of the Company. Paul McCaffery gave evidence that he was likely to have been wrong in his statement of 10 May 2003.

 

9.           On a balance of probabilities I find that the earliest of Paul McCaffery’s statements is likely to have been correct as to his belief about who he was working for in 2002.

 

10.       On balance I find that the Company were not contractors in the renovation of Cleadon House, Cleadon Village.

 

11.       Was Mr Convery employed under a contract of service by the Company.

 

12.       I find that if the Company were not involved as contractors in the renovation of Cleadon House, Cleadon Village then there is no evidence that Mr Convery had any contract with them at all ie he had neither a contract of service nor a contract for services. He was not therefore an employee of the Company on 22 October 2002.  I confirm the HMRC decision of 7 November 2006.

 

 

 

 

13.       Can Mr Convery proceed with his claim for Disablement Benefit naming another employer or without naming an employer at all?

 

14.       I considered the wording of the Social Security Contributions (Decisions and Appeals) Regulations 1999 which states that any decision made under s8 of the Social Security Contributions (Transfer of Functions, etc) Act 1999 must state ...... the name of every person in respect of whom it is made.  I agree with the submission made by Mr Weissand that the decision cannot be varied by a Tribunal, even if a Tribunal were to consider that a different employer had a contract of service with Mr Convery.

 

15.       There is some suggestion that advice could be given to Mr Convery as to what he should do next, if I were to consider that he was in employed earners employment on the day of the accident. It is not the role of this Tribunal to advise Mr Convery about whether he should try to proceed with an amended claim for Disablement Benefit, naming another possible employer but having heard oral evidence from Mr Gordon O’Brien, Mr Michael O’Brien and Mr McCaffery I make the following comments on the evidence heard by me.

 

16.       At the hearing Mr McCaffery gave evidence that he was working at Cleadon House, from September 2002 onwards as a self employed builder. This is not in dispute. He agrees that he suggested to Gordon O’Brien that Mr Convery should come to Cleadon House as a labourer. He denies that he ever told Mr Convery what to do. He did not consider Mr Convery to be his employee. Mr Convery did not name Mr McCaffery as a possible defendant in his civil claim.

 

17.       Gordon O’Brien thought that Mr Convery was coming as part of Mr McCaffery’s workforce.

 

18.       Gordon O’Brien provided the cash which was used to pay Mr Convery. Gordon O’Brien says he only ever gave this cash to Mr McCaffery and Mr McCaffery agrees that the total of money due to himself and Mr Convery, always came to Mr McCaffery before it was divided between himself and Mr Convery.

 

19.       Mr McCaffery and Mr Convery both thought that Mr Convery had collected the money on at least one occasion before the accident and Mr Convery thought that he received his money in a separate envelope on each of the two Fridays when he received money.

 

20.        On balance I find that Mr McCaffery’s memory, as to how the money came to him from Mr Gordon O’Brien, was more likely to be accurate than Mr Convery’s.  Mr Convery stated repeatedly in evidence that much of his memory about relevant events is not good and has been affected by the accident

 

21.       There is dispute between Gordon O’Brien and Paul McCaffery  as to what the money from Gordon O’Brien represented. Mr McCaffery said it was given as agreed ‘daily wages’ for both Mr McCaffery and Mr Convery. Mr Gordon O’Brien considered it was payment on account of a larger sum agreed with Mr McCaffery for the whole job.

 

22.       After the accident Mr McCaffery continued to take money to Mr Convery Was this payment of wages by Mr Gordon O’Brien or was Mr McCaffery continuing to share his payment with Mr Convery?

 

23.       Mr McCaffery gave evidence that after the accident the amount of money which he took to Mr Convery was based on the number of days which had been worked by Mr McCaffery in the preceding week ie if Mr McCaffery had only worked 3 days  he expected to receive from Mr Gordon O’Brien 3 x £60 for himself and 3 x £50 for Mr Convery. This suggests that any sums due to Mr Convery were based on the number of hours worked by Mr McCaffery. I find that if there was a direct contract between Mr Gordon O’Brien and Mr Convery, the number of hours worked by Mr McCaffery should have had no effect on money due to Mr Convery.

 

24.       On balance, on the above evidence regarding payment, I find that Mr Convery did not have a separate contract with Mr Gordon O’Brien.

 

25.       Mr Convery knew he was not receiving a wage slip when he received his money and he took no steps to give his national insurance number to anyone. In these circumstances I do not find that his belief that ‘someone’ was paying his tax and National Insurance Contributions was reasonably held.

 

26.       On the day of the accident the evidence as to who gave specific instructions which resulted in Mr Convery helping the scaffolders was very conflicting and there was no direct evidence to this Tribunal, from Kevin Donnelly or his father, who are alleged to have been party to telephone calls both before and on 22 October 2002 arranging for the scaffolding work to be carried out.

 

27.       Mr Convery obtained advice, dated 22 October 2007, from Desmond Rutledge of counsel as to his claim for Industrial Injuries Disablement Benefit. Mr Rutledge advised that Mr Convery was gainfully employed under a contract of service and that it is not necessary for HMRC to resolve the issue of whether Mr Convery was hired as a labourer by Mr McCaffery or Gordon O’Brien/ Michael O’Brien before deciding whether Mr Convery was an employed earner.

 

28.       On 1 September 2008, in a claim for compensation brought by Mr Convery, he obtained judgment against Kevin Thomas Donnelly trading as K D Scaffolding. It is not evident to me that the advice from Mr Rutledge was shown to those advising Mr Convery in his civil claim, or that this advice had any bearing on the reason for judgment being entered against the fourth defendant only. There is no evidence of a finding of fact in those proceedings that Mr Convery had a contract of service with any of the defendants.

 

29.       On balance I find that Mr Convery has not established that he had a contract of service with Gordon O’Brien personally or as agent for Michael O’Brien, nor with Paul McCaffery. I have heard no evidence from the scaffolders and I am not in a position to make a finding as to whether he was employed by them.

 

30.       The appeal is disallowed

 

 

The Appellant has a right to apply for permission to appeal against this decision pursuant to Rule 39 of the Rules.   The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice.

 

TRIBUNAL JUDGE  BARBARA KING

 

RELEASE DATE: 23 February 2010