HM Revenue and Customs Brief 25/09
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Issued 1 April 2009
The First Aid training sector and the Social Security
(Categorisation of Earners) Regulations 1978
The current position
Social Security (Categorisation of Earners) Regulations 1978 (the
Regulations) need only be considered where there is a contract for
HM Revenue & Customs’ (HMRC) interpretation of the
Regulations in terms of lecturers, teachers, instructors or others in a
similar capacity who are engaged to provide instruction in an
educational establishment is currently set out in guidance at ESM
4503 which will be shortly revised. The revised ESM 4503 is
comments below are by way of additional assistance. HMRC's view is that
the Regulations apply where a lecturer, teacher or instructor etc
provides instruction in:
- courses in a school, college or university
of an academic/vocational nature at any place where the instruction is
provided (for example, outdoors or at a client site)
course is covered by the Regulations whether or not it leads to a
certificate, diploma, degree or professional qualification. In
practice, HMRC's view is that courses in the latter category fall
within the Regulations where the completion of the course represents a
substantive achievement. HMRC's view of what represents a 'substantive
achievement' is the attainment of a recognised qualification, licence
or skill which provides access to a particular job or the authority to
conduct a particular activity in the workplace.
It is clear
from discussions with the First Aid training sector, that the
requirement that a course represents a substantive achievement is
causing difficulty because of the diverse nature of courses provided by
the sector (different courses being delivered by the same trainer in
the same week), the nature of the courses, the circumstances under
which they are provided, to whom they are provided and where they are
provided. It is also clear that there are wide-ranging and firmly held
views in the sector on the application of the Regulations.
need to have regard to the fact that the Regulations apply to training
providers outside the First Aid sector. Accordingly HMRC propose to
review whether the current Regulations should be amended in view of the
nature of training delivery today.
The way forward
inform the review and recommendations to Ministers, HMRC will undertake
an informal consultation with the training sector, including the First
Aid training sector, on the scope of the Regulations and their
HMRC will in due course publish an
announcement about the consultation on its website. Simultaneously HMRC
will write directly to identify interested stakeholders including those
in the First Aid training sector with whom there has been discussion.
the meantime, training providers in the First Aid sector should follow
HMRC's revised ESM 4503, drawing on this bulletin as necessary, when
deciding whether particular courses and instructors fall within the
scope of the Regulations.
Where training providers cannot
determine the status of their teachers, lecturers or trainers by
applying the revised ESM 4503 and this bulletin, they should contact
HMRC on Tel 08457 143 143 quoting this Revenue & Customs Brief
25/09 'The First Aid Training Sector and the Social Security
(Categorisation of Earners) Regulations 1978'.
Revised ESM 4503
ESM4503 - Particular occupations: teachers,
lecturers and instructors - NICs
SS (Categorisation of Earners) Regulations 1978
(SI 1978 No.1689) Regulation 1(2), Regulation 2, paragraph 4 in Part I
of Schedule 1 and paragraph 6 in Schedule 3
Most teachers etc are engaged either part-time or full-time
under a contract of service.
they are not, the above Regulations make provision for treating most
teachers, who are not employed under a contract of service, as
They provide for a teacher, lecturer or
instructor who teaches in an 'educational establishment' to be treated
as an employed earner if they teach in the presence of their students
(unless they are working for the Open University); and are paid by the
Education Authority or the person who provides the education.
Do not treat a teacher, lecturer or instructor as an employed
time the person spends teaching/lecturing is minimal in terms of the
working time available or the instruction is given only occasionally.
In practical terms this means that prior to giving the instruction,
they have agreed to give it on not more than 3 days in 3 consecutive
- the instruction is given as public lectures. A
public lecture is regarded as one which any member of the public can
attend without prior notice; that is, it is not part of a course or
confined to a particular group or society.
What is an educational establishment?
An educational establishment is defined in Regulation 1(2) as
- a place where instruction is given leading to a
certificate, diploma, degree or professional qualification; or
place where instruction is given which follows substantially the same
type of syllabus but which is not designed to lead to such a
certificate, diploma, degree or professional qualification.
In practice, therefore, an educational establishment can be
either a recognised educational establishment: for example a school,
university or college or anywhere else (indoors or outdoors) where
instruction is given. The case of St. John’s School, Cambridge v
Secretary of State for Social Security gives further guidance on this
point – see ESM7230.
What is important is the nature of the instruction.
Regulations should be applied to all teachers, lecturers or instructors
providing instruction in a school, college or university regardless of
the nature of the instruction, whether it is given outside normal
school hours or whether the particular course leads to a certificate,
diploma, degree or professional qualification.
instruction is given in a place which is not a recognised educational
establishment such as a school, college or university, the Regulations
should be applied only to those teachers, lecturers or instructors who
are giving instruction on courses which result in the attainment of a
recognised qualification, licence or skill which provides access to a
particular job or authority to conduct a particular activity in the
workplace. This is irrespective of whether such instruction results in
the provision of a certificate, diploma or such similar document.
Who provides the education?
teacher, lecturer or instructor delivering the instruction must be
engaged by a person providing education. (Para 4, Part 1 of Schedule 1)
That person may be:
local authority, Board of Governors of a school or any other type of
training organisation such as a company or partnership; or
- An individual (where they are engaged directly by the
client to deliver the instruction)
Who pays the teacher, lecturer or instructor?
earnings in respect of the employment must be paid by, or on behalf of,
the person providing the education. (Para 4(c) Part 1 of Schedule 1)
Example 1 - Recognised educational establishment
a school engages a teacher, guarantees the payment of fees for that
instruction and is responsible for ensuring that any fees due are paid
by the parents, the school is paying the teacher.
teacher has contracted directly with the parents, receives his/her fees
either via the school or direct from the parents and has to personally
pursue non-payment of fees with the parents, the teacher is regarded as
not being paid by the school. So the condition in paragraph 4(c) is not
satisfied and the teacher continues to be a self-employed earner.
it is stated that the previous paragraph applies, confirm the facts
carefully and check for evidence before accepting that the provisions
are not satisfied. Do not assume that the school is liable just because
it includes the particular instruction in its syllabus or sets the fees
but verify that it is also responsible for finding the teacher and any
Example 2 - Vocational or skills training in a non recognised
a local authority or business contracts with a training organisation
that provides a trainer to train its staff, that organisation receives
payment direct from the local authority or business and pays the
trainer for delivering the training, the Regulations will apply. In
this situation the training organisation is treated as the secondary
Issuing opinions under the Regulations
Always use the draft letter at ESM0110
when giving an opinion under these Regulations.
About the Author
© Crown Copyright 2009.
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Article Published/Sorted/Amended on Scopulus 2009-04-04 12:05:44 in Tax Articles