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Tax and Social Welfare Codes

Dáil Éireann Debate, Tuesday - 14 December 2021

Tuesday, 14 December 2021

Questions (442, 443, 446)

Brian Stanley

Question:

442. Deputy Brian Stanley asked the Minister for Social Protection if her Department is of the view that the 1997 Revenue Commissioners courier sector tax agreement which was discontinued in 2019 was in keeping with her Department’s factors for determining the employment status of courier workers (details supplied). [61639/21]

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Brian Stanley

Question:

443. Deputy Brian Stanley asked the Minister for Social Protection the number of test cases that were undertaken prior to her Department’s establishment of criteria in 1995 to determine the formal insurability and employment status of courier workers. [61640/21]

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Brian Stanley

Question:

446. Deputy Brian Stanley asked the Minister for Social Protection the reason her Department did not amend the 1995 determining factors for employment status of courier drivers following the outcome of a Supreme Court case (details supplied). [61643/21]

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Written answers (Question to Social)

I propose to take Questions Nos. 442, 443 and 446 together.

The concept of a ‘test case’ has been misinterpreted over the years.

In 1995 the Social Welfare Appeals Office considered an appeal against a Departmental Deciding Officer determination that a person working as a courier, was in the particular circumstances of the case, employed rather than self-employed. The Appeals Office determined on appeal that the worker was in fact self-employed. In reaching this determination the Appeals Officer set out a number of criteria that informed the decision and that could then be used on a case by case basis when deciding whether a worker was employed or self-employed. It is not the case that the determination by the Appeals Officer was used to classify all people working as couriers as self-employed.

While Deciding Officers in my Department have regard to the findings of the Appeals Office, they are required to assess each new case on an individual basis, considering all of the terms and conditions of the particular employment. Accordingly, subsequent to the 1995 Appeals Office decision, and taking account of the criteria set out in that decision, Scope Section has found some couriers to be employees and others to be self-employed.

In the years following the decision of the Appeals Officer in 1995, the evolving case law of the time clarified and expanded the criteria that should be applied in determining questions of employment status. These criteria were codified into the first Code of Practice, published in 2001. This Code was devised by the Employment Status Group, involving trade union and employer representatives, under the Programme for Prosperity and Fairness and has been recently updated following consultation with the same groups.

The outcome of any case with respect to a worker in a particular occupation or sector is not applied to an occupation or entire sector. All workers are entitled to a determination of their status on an individual basis with each application for a determination subject to decision on its own merits taking account of the criteria set out in the Code of Practice.

The criteria used for deciding the insurability of couriers are the same criteria used for deciding the insurability of individuals in all other sectors. This criteria is set out clearly in the Code of Practice on Determining Employment Status and it is based on case law set down by the Courts. The Henry Denny case (Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1997] IESC 9), to which the Deputy refers, is one of many High Court and Supreme Court cases which are instructive in employment status cases. Decisions made by my Department are guided by the case law as it evolves. For this reason, an indicative list of key Court decisions is contained at page 33 of the Code of Practice.

In relation to the Revenue Tax Briefing of 1997 referred to by the Deputy, it is important to emphasise the distinction between the remits of my Department and that of the Office of the Revenue Commissioners. While I understand that the Revenue Commissioners has had regard to the criteria first identified in 1995 and subsequently expanded and codified in 2001 (updated in the past year), the Revenue Commissioners make decisions on tax matters under statutory powers granted to them and are required to act independently of Government in the exercise of their functions.

My Department has the statutory power to determine which social insurance class applies to an individual. The Revenue Commissioners do not make decisions regarding social insurance status, only tax matters. Equally, decisions of my Department as to PRSI insurability do not affect tax liability.

I encourage any worker who has doubts about their social insurance classification to apply to Scope Section by e-mailing: scope@welfare.ie, phoning: +353 (0)1 673 2585 (9am-5pm) or writing to:

Scope Section

Department of Social Protection

Áras Mhic Dhiarmada

Store Street

Dublin 1

D01 WY03

I trust this clarifies matters for the Deputy.

Question No. 443 answered with Question No. 442.
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