Appeal Brief for Statutory Sick Pay

Particulars

Appellant: Employer’s/Employee’s name and address

Interested Party: Employee’s/Employer’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

  1. A formal decision regarding the [E/r] liability to pay SSP to [e/e] was given by a Nominated Officer of HM Revenue and Customs on …………..[date] in accordance with the provisions of section 8 (1) (g) of the Social Security Contributions (Transfer of Functions, etc) Act 1999.
  2. The decision reached was:
  1. 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 SSP from their employer and the liability of [e/r] to pay SSP. 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 ofsection 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 Tribunal decision 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 any proceedings under Rule 9 of The Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (No.273 (L.1)) (SI2009/273).

Matter under Appeal

The main point of contention, for example “whether the employee was unfit for work”.

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 SSP 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 etc and there are valid grounds of appeal.

Relevant Legislation

Section 8(1)(g) of the Social Security Contributions (Transfer of Functions etc.) Act 1999. (Document L1)

Section 151 to 154 of the Social Security Contributions and Benefits Act 1992.

Section 163 of the Social Security Contributions and Benefits Act 1992.

The Statutory Sick Pay (General Regulations) 1982 (“the General Regulations”).

The Statutory Sick Pay (Medical Evidence) Regulations 1985 (“the Medical Evidence Regulations”)

Regulation 12 of the Social Security Contributions (Decisions and Appeals) Regulations 1999

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.

For example, “the period of absence” will probably be an agreed fact but if the employer is disputing that the employee was unfit for work, then a statement that “the period of absence was due to incapacity” is not a fact as this is a contention of the appellant.

The following list is not prescriptive but will probably form the basis of the agreed facts.

[E/e] commenced employment with [e/r] on

His/Her normal working days were Monday, Tuesday, Wednesday, Thursday, Friday, Saturday and Sunday. [delete as appropriate]

He/she last worked on

He/she was absent from work from

He/she notified their employer that they were unfit for work on

He/she provided medical certificates for the following periods

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 disputed incapacity and whether or not the conditions are satisfied.

Appellants contends:

Interested Party contends:

HM Revenue and Customs contends:

The following is a list of common contentions. This should cover the conditions for SSP and whether or not they are satisfied. Where there is no dispute, the reference to that condition can be very brief.

  1. Where an employee has a day of incapacity for work in relation to their contract of service, the employer is liable to pay SSP if all the prescribed conditions are satisfied(section 151 of the Act).A day of incapacity for work means a day on which the employee is, or is deemed to be, incapable by reason of some specific disease or bodily or mental disablement of doing work which they can reasonably be expected to do under her contract(section 151(4) of the Act).
  2. The first condition for entitlement is that the day in question must form part of a period of incapacity for work (PIW). A PIW is a period of four or more consecutive days, each of which is a day of incapacity for work (section 152 of the Act).
  3. The second condition is that the day in question falls within a period of entitlement. A period of entitlement between an employer and employee is the period which begins with the commencement of a period of incapacity and ends with the earlier of the date incapacity ends; the maximum liability (28 weeks) of SSP has been paid; or the contract of employment ends (but see paragraph 23); or the start of the exclusion period due to pregnancy(section 153 of the Act).
  4. The third condition is that the day in question is a qualifying day. Qualifying days are usually the days the employee is contracted to work(section 154 of the Act).
  5. [e/e] was employed by [e/r] when [he/she] became unfit for work and continued to be employed by them until she was again fit for work. He/she was not excluded from receiving SSP during this period.
  6. His/her normal working days were [Monday, Tuesday, Wednesday, Thursday Friday Saturday and Sunday]*. The days in question are therefore qualifying days within the meaning of section 154 of the Act.
  7. [e/e] notified their employer of their incapacity on [date] An employee must notify their employer when he/she is sick and unable to work. Sickness must be notified within the period set by the employer, or on or before the seventh day of absence.(regulation 7(1) of the General Regulations). [add text on late notification if necessary]
  8. An employee is not required to provide medical information in respect of the first seven days in any spell of incapacity for work (regulation 2 of the Medical Evidence Regulations). [e/e] gave his/her employer a self-certification of incapacity on [date] for the period [date] to [date]
  9. The employer may require evidence of incapacity from the eighth day of absence. On [date(s)] [ e/e] provided his/her employer with medical certificates signed by her GP as evidence that he/she was incapable of work from [date] to [date] due to [condition]. [add explanation if medical evidence is backdated] Medical evidence in the form of a certificate signed by the employee’s medical practitioner conforms to the requirements of the Medical Evidence Regulations and should be accepted unless there is conflicting medical evidence given by a qualified medical practitioner.
  10. As [e/r] was disputing [e/e]’s incapacity, HMRC requested an independent medical opinion from Medical Services as to whether or not [e/e] was incapable of carrying out his/her normal work for [e/r] for the period from [dd/mm/yy]
  11. After examining [e/e] on [date] Medical Services determined that he/she was incapable/not incapable of carrying out his/her normal duties of work, because of a specific disease or bodily or mental disablement.

[If e/e was not unfit for work, paras 15 to 23 are not relevant. Para 15 should be replaced by “SSP is not payable as the employee was not or could not be deemed to be unfit for work under their contract”]

  1. SSP is not payable for the first 3 qualifying days in a period of entitlement(section155(1) of the Act).In this case the first 3 qualifying days were […….]
  2. The weekly rate of SSP for the [relevant] tax year is [£ amount.] It is treated the same as gross pay for PAYE and NICs. Allowable deductions can be made. A week, for SSP purposes, begins on a Sunday and ends midnight on Saturday.
  3. SSP is paid on a daily basis, The rate payable is calculated by dividing the weekly rate by the number of qualifying days the employee’s working week. SSP is only payable for qualifying days. It is paid at the same time and in the same way as wages(regulation 9(1) of the General Regulations).
  4. In this case, there were [number] of qualifying days so the daily rate of SSP is [£ amount]
  5. The amount of SSP payable to [e/e] is:
  6. SSP already paid is [£amount] *
  7. The balance of SSP due is [amount ]*
  8. If a contract of service is brought to an end for the purposes of avoiding liability for SSP, the employer is liable to pay the SSP until the period of entitlement would have come to an end if the contract had remained current(regulation 4 of the General Regulations).*

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 the First-tier Tribunal to accept our case.

It is important that all available documentation – original where possible – is made available.

Decision the First-tier Tribunalare being asked to Make

That for the purposes of the Social Security Contributions and Benefits Act 1992 [e/e] was/was not unfit for work due to incapacity in relation to her contract of service for the period from [first day of disputed incapacity ] to [last day of disputed incapacity ].

That [e/r] is liable/not liable to pay SSP to [e/e] amounting to [ £] for the period from [first day of alleged incapacity] to [last day of alleged incapacity]**, of which [£amount ] has already been paid by [ e/r ] leaving a balance of [£amount] to be paid to [e/e] by [e/r]*.

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