FOI request detail

Off-payroll legislation

Request ID: FOI-0021-1920
Date published: 30 April 2019

You asked

The Off-payroll legislation was introduced in Chapter 10 of the Income Tax (Earnings and Pensions) Act 2003, with the new legislation going live from April 6th 2017. This new legislation overrode, in the public sector, the existing Intermediaries Legislation (Chapter 8, ITEPA). The new legislation is here: [4] One of the key differences between the chapter 8 and chapter 10 is that the public authority is required to decide whether the off-payroll working rules (Chapter 10) apply based on whether the conditions have been met in section 61M(1)(d). 61MEngagements to which Chapter applies (1)Sections 61N to 61R apply where— (a)an individual (“the worker”) personally performs, or is under an obligation personally to perform, services for another person (“the client”), (b)the client is a public authority, (c)the services are provided not under a contract directly between the client and the worker but under arrangements involving a third party (“the intermediary”), and (d)the circumstances are such that— (i)if the services were provided under a contract directly between the client and the worker, the worker would be regarded for income tax purposes as an employee of the client or the holder of an office under the client, or (ii)the worker is an office-holder who holds that office under the client and the services relate to the office. This requires the public authority to test whether the worker would be considered an employee based on employment status case law. These assessments would have been completed by you with each assessment receiving its own determination. Please can you provide: A monthly breakdown, from April 2017 onwards of the number of assessments conducted by you, together with the number of assessments that are considered to be “inside IR35” (i.e. 61M(1)(d) applies) and the number that are “outside IR35” (i.e. 61M(1)(d) does not apply) If the FOI time limit of 3.5 hours is such that not all of these records can be obtained in the time limit of 3.5 hours, then please provide them for as many of the most recent months as possible until the time limit is reached. Thank you.

We answered

TfL Ref: FOI-0021-1920

Thank you for your email received by TfL on 1st April 2019 asking for information about the new off-payroll legislation that took effect from April 2017. On 4th April you confirmed that you would like the response to cover the Docklands Light Railway, Crossrail 2 and Transport for London separately.

Your request has been considered in accordance with the requirements of the Freedom of Information Act and our information access policy.

Specifically you asked:

Please provide a monthly breakdown, from April 2017 onwards of the number of assessments conducted by you, together with the number of assessments that are considered to be “inside IR35” (i.e. 61M(1)(d) applies) and the number that are “outside IR35” (i.e. 61M(1)(d) does not apply)”.

I can confirm that we hold the information you require. However, to provide it would exceed the ‘appropriate limit’ of £450 set by the Freedom of Information (Appropriate Limit and Fees) Regulations 2004.

Under section 12 of the FOI Act we are not obliged to comply with a request if we estimate that the cost of determining whether we hold the information, and then locating and retrieving it, or extracting it from other information, would exceed the appropriate limit. This is calculated at £25 per hour for every hour spent on the activities described, which equates to 18 hours work.

Our HR team began the process of collating the requested information. However, it was only possible to collate monthly information for the year 2019 to date within the 18-hour threshold. This is provided in the table below. The figures cover all of TfL as it was not possible to categorise the number of workers by separate areas (such as the DLR or Crossrail 2) in the time allowed.

Assessed as inside IR35

Assessed as outside IR35

January 2019



February 2019



March 2019



1- 9 April 2019





Note: TfL does not conduct assessments or re-assessments for every agency role as many are advertised as inside IR35 (PAYE or via an umbrella company) only.

I can further inform you that following the introduction of Off Payroll Working in the Public Sector on 6 April 2017, TfL assessed all roles undertaken by Personal Service Companies (PSC’s) to determine whether the roles were within IR35 legislation. In March and April 2017 all 1,672 Personal Service Company (PSC) agency workers were assessed. Of these 33% were determined as inside IR35 and subsequently moved to agency payroll as PAYE workers. A further 10% were employed directly by TfL as PAYE employees and a further 20% were determined as outside of IR35. Approximately 30% left their assignment at TfL to work elsewhere, 7% transferred to a ‘statement of work’ and alternative destinations.

If this is not the information you are looking for please do not hesitate to contact me.

Please see the attached information sheet for details of your right to appeal as well as information on copyright and what to do if you would like to re-use any of the information we have disclosed.

Yours sincerely,

David Wells

FOI Case Officer

FOI Case Management Team

General Counsel

Transport for London

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