Two IR35 legal challenges launched against NHS

Not one but two separate legal challenges against how IR35 reform has been implemented on the NHS were yesterday confirmed to ContractorUK.

Dr Iain Campbell, secretary-general of the Independent Health Professionals Association (IHPA), said paperwork was being finalised with a view to launching “multiple” Judicial Reviews.

“We are fundraising for two legal campaigns,” says a crowdfunding page by the IHPA, which is seeking to raise a total of £45,000 by November 30th.

“First, we are seeking to run test cases against individual NHS Trusts that are refusing to properly assess locum colleagues to determine whether they are inside or outside IR35.  

“Second, we are seeking to challenge, by judicial review, the cost capping and the pan-London cap.”

'Not improved'

Elaborating on the legal challenges, the association said that despite NHS Improvement telling trusts in June that blanket assessing all PSCs as inside IR35 was wrong, many still are.

“Sadly, the situation on the ground has not improved, and the vast majority of locum workers in the NHS are deemed to be inside IR35, irrespective of the circumstances of their contract.  

“NHS bodies are simply ignoring guidance that has been issued by NHS Improvement,” IHPA said. “To make matters worse, the NHS is attempting to impose further caps or ‘pan London’ rates to locum contracts.”

'Finalising paperwork'

The association added that it was “finalising paperwork” and taking procedural steps to make a claim for judicial review, which will be assisted by Duncan Lewis Solicitors.

But the judicial review is news to the British Medical Association. “We do not know anything about that specific legal challenge and we don’t have a position on it,”  a BMA spokeswoman said yesterday

Nonetheless, the BMA has called the off-payroll rules which reformed IR35 in the public sector an “administrative disaster.” It has also branded their introduction by NHSI “chaotic.”

'Kangaroo court'

Part of that “chaos” -- described on Tuesday as ongoing -- is because ‘outside’ IR35 determinations are being routinely rejected by trusts, even when they come from more than one reputable source, such as CEST (the IR35 digital tool)  and IR35 reviewers.

“There are obviously benefits in challenging blanketing,” said Dr Campbell. “[We plan on] exposing the rigging of the…[IR35 digital tool] and ‘kangaroo court’ assessments [of PSCs’ IR35 status] across the whole public sector.”