Appeal Brief for Statutory Maternity Pay
Particulars
Appellant:Employer’s/Employee’s name and address
Interested Party:Employer’s/Employee’s name and address
Agent details:Agents name and address
Date of original decision:
Date of Appeal:
Timing
Each case will be different and the choices are ‘routine’ or ‘urgent’. Routine cases will be dealt with normally with Urgent taking precedence. If it’s considered ‘urgent’ full reasons must be given.
The Decision
- A formal decision regarding the [E/r] liability to pay SMP to [e/e] was given by a Nominated Officer of HM Revenue and Customs on …………..[date] in accordance with the provisions ofsection 8 (1) (g) of the Social Security Contributions (Transfer of Functions, etc) Act 1999.
- The decision reached was:
- Both [e/r and e/e] have full appeal rights in respect of this decision as it determines both E/e’s entitlement to receive SMP from their employer and the liability of [e/r] to pay SMP. Both [ ] may be entitled to appeal against the First-tier Tribunal decision and therefore are entitled to be informed of their decision following the hearing.
The employer/employee appealed against the decision under the provisions of section 11 of the Social Security Contributions (Transfer of Functions, etc) Act 1999 as amended by the Commissioners for Revenue and Customs Act 2005 and further amended by The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (No. 56) (SI 2009/56)
Joining the Interested Party.
Both parties to a Statutory Payments decision on entitlement may be entitled to appeal against the First-tier Tribunaldecision and are entitled to be informed of their decision following the hearing.
To protect their statutory rights as the interested party, the First-tier Tribunalmay give a direction adding [employee/employer] to the proceedings under Rule 9 of The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (No.273(L.1)) (SI2009/273). .
Matter under Appeal
A brief summary of who has appealed and the reason is sufficient – full details will be given later.
Amount at Stake
Matters under appeal
This confirms that the formal decision has been correctly issued, and that a formal decision regarding the employer’s liability to pay SMP to the employee was given by a Nominated Officerunder section 8 of the Transfer of Functions Act 1999 as amended by the Revenue and Customs Act 2005.
The employer and/or employee appealed against the decision under section 11 of the Transfer of Functions Act etcand there are valid grounds of appeal.
Relevant Legislation
Social Security Contributions and Benefits Act 1992
Work and Families Act 2006
Social Security SMP(General) Regulations, 1986
Note: For Northern Irelandcases, use the NI legislation
Agreed Facts
These are the relevant facts of the case and should be agreed by appellant and interested party. The “facts“ can not contain anything which are disputed by either party. If they are definitely not disputed they can be included. If either party does not agree the “fact” do not use it as the facts must not contain anything contentious.
The following list is not prescriptive but will probably form the basis of the agreed facts.
[Employee] commenced employment with [employer] on
The employee’s baby was due on
She was employed by her employer during the QW [date to date]
The employee last worked on
The employee returned to work on
The AWE over the relevant period are
Points at Issue
The Appellant’s and Interested Party’s contentions are those issues covered during the investigation and decision making process and the appellant’s grounds for appeal. HMRC’s contentions cover the general conditions for SMP and any specific issues such as late notice or whether or not the conditions are satisfied.
Appellants contends:
Interested Party contends:
HMRevenue and Customscontends:
- Under the provisions of Section 164 of the Social Security Contributions and Benefit Act 1992 (“the Act”) a woman who is pregnant or had a baby is entitled to Statutory Maternity Pay if she satisfies all the prescribed conditions.
- The first condition is that she is, or is treated as, an employed earner and she has an employer. An employer is defined by section 171 of the Act as the person who has responsibility for paying the employer’s share of any National Insurance contributions due on the woman’s earnings under Section 1(2) of the Act. This means that whoever is responsible for paying the NICs on her earnings is responsible for paying her SMP. [e/r] is liable to pay Class 1 National Insurance Contributions on [e/e’s] earnings therefore is her employer for SMP purposes.
- The second condition is that she was employed for a continuous period of at least 26 weeks continuing into the qualifying week, which is the 15th week before the week in which the baby is expected to be born. Regulation 11 (1) of the Statutory Maternity Pay (General) Regulations 1986 describes the circumstances in which the continuous employment rule is not broken. [e/e]’s baby was due on [e/e] therefore the qualifying week is [dd/mm/yy]. To satisfy the continuous employment condition she must have been employed in each of the 26 weeks from [dd/mm/yy] to [dd/mm/yy]. [e/e] was employed by [e/r] from [dd/mm/yy] to [dd/mm/yy] so she satisfies/does not satisfy this condition.
- Her normal weekly earnings, calculated in accordance with regulations, must have been at or above the Lower Earnings Level (LEL) in the tax year containing the qualifying week. A woman’s normal earnings are her average weekly earnings calculated over a period of at least 8 weeks ending on or before the end of the qualifying week. [e/e]’s gross earnings during the relevant period are [list payments] therefore her average weekly earnings were above/below the Lower Earnings Limit for the [relevant tax year], which was [£amount].
- She must have notified her employer that she wanted to be paid SMP at least 28 days before the date her SMP was due to start. On [dd/mm/yy] [e/e] notified [e/r] that she was pregnant and would be going on maternity leave from [dd/mm/yy].
- She must have provided her employer with medical evidence of the date on which her baby is expected to be born no later than the end of the 3rd week of what would be the maternity pay period, or if there is good cause for the delay, by the 13th weeks of the maternity pay period. She gave [e/r] her Maternity certificate (MATB1) on [dd/mm/yy].
- She must have stopped working for the employer who is liable to pay Statutory Maternity Pay. Her SMP may start on or after the beginning of the 11th week before the week the baby was due (EWC) but must start on or before the day following the birth of the baby. The start date for SMP may be determined by regulations:
aIf the employee was absent from work due to her pregnancy on or after the beginning of the 4th week before the EWC and the SMP has not already started, then the SMP will start on the day after the first full day of such absence.
bIf her baby was stillborn, SMP is not payable if the baby was delivered before the 16th week before the EWC. If it was delivered during or after the 16th week before the EWC it is to be treated as a live birth for SMP
cIf the baby was born before the notified start date for SMP, the SMP starts the following day.
dIf her employment is terminated after the 15th week but before the 11th week the SMP starts on the Sunday of the 11th week before the EWC
- [e/e] started her Maternity leave on [dd/mm/yy] OR give reason for trigger date for SMP.
- [e/e] satisfies all the conditions for SMP/does not satisfy all the conditions for entitlement to SMP because:
10.Her entitlement ended on [dd/mm/yy] because [for example: she started working for a new employer; she was held in legal custody]
Note:
This list of contentions is not definitive – not all the paragraphs will be needed in every case and other paragraphs covering issues such as breaks in continuous employment, earnings, late notification, evidence, amount payable or unlawful deductions may need to be included.
If the employee does not satisfy all the conditions, give details of the condition(s) not satisfied and why they are not satisfied. If the employer agrees that the other conditions are satisfied, then the paragraphs setting them out can be replaced by a statement that the employer has agreed that all the other conditions would have been satisfied. If the employer disagrees about any of the other conditions, you may need to say why they are satisfied, in case the First-tier Tribunalupholds the employee’s appeal.
Documents which support HMRC’s case
Rule 15 of The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (No.273(L.1)) (SI2009/273) makes provision about evidence which may be heard.
The evidence has to be sufficiently strong for theFirst-tier Tribunal to accept our case.
It is important that all available documentation – original where possible – is made available.
Decision the First-tier Tribunalare asked to Make
That [e/e] is entitled to Statutory Maternity Pay at the earnings related rate of [£ amount] per week for 6 weeks commencing on [dd/mm/yy] and at the standard rate of [£ amount]* per week for [number of weeks remaining in MPP or to week before the decision] weeks commencing [dd/mm/yy] and that [e/r] is liable to pay the Statutory Maternity Pay to [e/e] amounting to [£ amount]. OR
That [e/r] is not liable to pay Statutory Maternity Pay to [e/e] in respect of her baby which was due to be born on [EWC]
Comments
Contact
[appeal writer]
HMRC
National Insurance Contributions Office
Decisions and Appeals Unit
Room BP2301 BentonPark View
Newcastle upon Tyne
NE98 1YZ
Tel: 0191 22……..
Fax: 0191 2254160