Closing date for furlough applications

ComicGeek

leitmotif said:

ComicGeek said:

We should all be trying to operate within the spirit of the furlough system

I am interested in exploring ways to maximise my buoyancy.

No, you shouldn't be looking to 'maximise', it's designed to prevent mass unemployment, that's been made absolutely clear. I think any attempt to 'maximise' would be treated with the contempt it deserves. As someone else posted, the govt will certainly be reviewing payouts later as a means of reclaiming costs.

leitmotif

ComicGeek said:

No, you shouldn't be looking to 'maximise', it's designed to prevent mass unemployment, that's been made absolutely clear. I think any attempt to 'maximise' would be treated with the contempt it deserves. As someone else posted, the govt will certainly be reviewing payouts later as a means of reclaiming costs.

If that were the sole aim, we would expect to see it paralleled in the measures for self-employed people. The fact that they're allowed to claim some money and continue working lends credence to the 'helicopter money' theory I presented in my thread 'Legality of Martin Lewis's advice'.

unholyangel

leitmotif said:

unholyangel said:

I said you were attempting to backdate the furlough, not attempting to backdate the claim. The claim can be backdated, the furlough can't. The backdating the government referred to (being able to do it to the 1st march) was where employees had already effectively been furloughed (even if by a different name before the scheme was ever announced) and was speaking about backdating the claim, not the furlough. 

I don't accept the distinction, because you go on to qualify furloughed as 'effectively furloughed', which is quite different to formally furloughed. Your 'effectively furloughed' allows for the following scenario: The director of a one-man limited stops receiving orders/offers of work from customers in February. Recognising that this is down to the coronavirus crisis, and recognising that this crisis might persist for quite some time, he decides that he'll take an extended break from work. He's now 'effectively furloughed (even if by a different name before the scheme is announced)'. Once the scheme is announced, he writes himself an open-ended furlough letter as per one of my previous comments and applies as and when he sees fit (because the government guidance doesn't stipulate that he apply straight away).

unholyangel said:

Making yourself available for work (ie being "on call") is working time!

I don't accept the conflation, as being on call is quite different from being available for work. When on call, one is formally scheduled to provide services as and when required, is being paid to be on call, is not 'effectively furloughed'. Being 'effectively furloughed' because no work has been coming in for weeks and one has resigned oneself to this, has decided to take an extended break, and will only break the 'effective furlough' if a customer e-mail pops up on one's phone saying 'here's a decent amount of money for an easy job' is no more analogous to being on call than an employee being 'effectively furloughed' and being potentially available should his/her employer call and say 'actually, we've got work, can you start again tomorrow?'

unholyangel said:
the working time regulations [...] state that working time is any time you are at your employer's disposal.

Right, so not at your customers' disposal?

unholyangel said:
solicitors and accountants [...] have PI insurance they can rely on if they're wrong. What do you have to rely on if you're wrong? 

The fact of being effectively furloughed throughout, the total absence of evidence to the contrary and the total lack of detectability.

unholyangel said:
As for the detection, some of the methods I had in mind might be imagined but some are real - which is why I won't disclose them. I appreciate me not disclosing them draws doubt on what I said but that's something I accept. I might be quite outspoken in my opinions but I'm not interested in point scoring or getting one over on someone  

My persistence isn't about point-scoring. As I mentioned to someone else above, the 'culture' on MSE's forum is such that there's a lot of negativity, people trying to shoot people down. I expect to have to bulldoze my way through this to get to a point where I can explore various positions in detail (often by playing devil's advocate to them, as I'm doing here).

I should stress that my use of the verb 'imagine' wasn't intended to mean that the methods of detection that you had in mind (the more apposite turn of phrase) are not real. I don't doubt that they're real. I do doubt that they'd be effective, and all of the detection methods I have in mind are entirely and straightforwardly circumventable.

Effectively furloughed means that you meet all the requirements, that you are furloughed in everything except name. The scheme does not require that your employer has actually told you that you are "furloughed" just that you have been furloughed and the directions specify you have been furloughed if your employer sends you written notification you are to cease all work and you agree to cease all work. 

You can not accept it all you like. As I said, it is a well established principle of employment law with both statute & case law to back it up. 

Being at your customers disposal is being at your employers disposal because an employee doesn't have customers, the business does. 

As for consulting with your accountant, you think they woud lie for you? You're not the only person hmrc can ask. But again, you seem to think it will be for HMRC to prove it wasn't to fulfil a director duty rather than for you to prove it was. HMRC are not a private company who just have to accept what you tell them. If you are unhelpful to their investigations, it will only increase the penalties they apply, it will not stop their investigation. 

You can do no work for your employer. That means you cannot do anything that generates revenue or provides services to your employer. As you're a director, you can still do enough to comply with any statutory obligation you have (which is why I said filing company accounts would be okay - as that is a director duty) but you must not do anything further than necessary to comply with that duty and you still can't provide any sort of service to your employer. Or to put it plainly, if there is not legislation that specifically states a director must do something, then you can't do it or you will be providing services to your employer and will not be furloughed/will not be eligible for CJRS. 

leitmotif

unholyangel said:
Effectively furloughed means that you meet all the requirements, that you are furloughed in everything except name. The scheme does not require that your employer has actually told you that you are "furloughed" just that you have been furloughed and the directions specify you have been furloughed if your employer sends you written notification you are to cease all work and you agree to cease all work.

The hypothetical director in the above example says he does meet all the requirements and has been furloughed in everything but name.

unholyangel said:

Being at your customers disposal is being at your employers disposal because an employee doesn't have customers, the business does.

That's an interesting take on it, and one that I'm prepared to accept, but as I said, I don't accept that a customer's ability to send you an e-mail and your ability to receive that e-mail is analogous to anything other than an employer's ability to phone you and your ability to pick up the phone. In themselves, neither of these things constitute work.

unholyangel said:
As for consulting with your accountant, you think they woud lie for you?

As I said, my accountant is a good friend of mine. I doubt he would remember the details of every phone call we've ever had.

unholyangel said:
But again, you seem to think it will be for HMRC to prove it wasn't to fulfil a director duty rather than for you to prove it was.

Prior to court, HMRC might expect you to prove your version of events rather than them prove their version of events. That's not how it would work once in court, however. Innocent until proven guilty. In a civil court, it would be for HMRC to prove their version of events on the balance of probability.

Andy_L

leitmotif said:

unholyangel said:

As for consulting with the accountant, that all depends on why they're consulting with them! If its with regards to filing the company accounts then that would be fine as that is a statutory duty of a director. If it's to ask questions about CJRS eligiblity then that is not a director duty and is instead providing services for your company. 

Given that it's notoriously difficult to get accountants to commit to anything in writing, all advice is likely to be by phone only and the content of the call won't be provable.

That aside, I'd like to ask a question from a position of semi-ignorance. I was under the impression that furloughed employees can't engage in any revenue-generating activities for a company if they've been furloughed. Obviously some activities are more directly related to generating revenue for a company than others. If as director I decide that once the coronavirus crisis is all over, I'd like the company to have a new website, would sketching some ideas be off the cards? That's just one of a myriad of possible examples, and again the question 'who's going to know?' comes into play, but you get my drift.

They also cant provide services to the company, which would cover website design

LilElvis

leitmotif said:

Prior to court, HMRC might expect you to prove your version of events rather than them prove their version of events. That's not how it would work once in court, however. Innocent until proven guilty. In a civil court, it would be for HMRC to prove their version of events on the balance of probability.

That's not how it works - you don't get a day in court to challenge their decision. Court cases involving HMRC are usually limited to criminal prosecutions and bankruptcy petitions. Perhaps you should do some more research into the powers that HMRC hold because unholyangel is correct in that the onus will be on you to disprove their assertions. 

leitmotif

LilElvis said:

leitmotif said:

Prior to court, HMRC might expect you to prove your version of events rather than them prove their version of events. That's not how it would work once in court, however. Innocent until proven guilty. In a civil court, it would be for HMRC to prove their version of events on the balance of probability.

That's not how it works - you don't get a day in court to challenge their decision. Court cases involving HMRC are usually limited to criminal prosecutions and bankruptcy petitions. Perhaps you should do some more research into the powers that HMRC hold because unholyangel is correct in that the onus will be on you to disprove their assertions. 

That's a good point, and one I hadn't considered.

LilElvis

leitmotif said:

LilElvis said:

leitmotif said:

Prior to court, HMRC might expect you to prove your version of events rather than them prove their version of events. That's not how it would work once in court, however. Innocent until proven guilty. In a civil court, it would be for HMRC to prove their version of events on the balance of probability.

That's not how it works - you don't get a day in court to challenge their decision. Court cases involving HMRC are usually limited to criminal prosecutions and bankruptcy petitions. Perhaps you should do some more research into the powers that HMRC hold because unholyangel is correct in that the onus will be on you to disprove their assertions. 

That's a good point, and one I hadn't considered.

Only a fool would underestimate them. There is no fudge or potential workaround that they won't have thought of too - so will be actively seeking out those infractions when they start clawing back claims. 

unholyangel

leitmotif said:

unholyangel said:
Effectively furloughed means that you meet all the requirements, that you are furloughed in everything except name. The scheme does not require that your employer has actually told you that you are "furloughed" just that you have been furloughed and the directions specify you have been furloughed if your employer sends you written notification you are to cease all work and you agree to cease all work.

The hypothetical director in the above example says he does meet all the requirements and has been furloughed in everything but name.

unholyangel said:

Being at your customers disposal is being at your employers disposal because an employee doesn't have customers, the business does.

That's an interesting take on it, and one that I'm prepared to accept, but as I said, I don't accept that a customer's ability to send you an e-mail and your ability to receive that e-mail is analogous to anything other than an employer's ability to phone you and your ability to pick up the phone. In themselves, neither of these things constitute work.

unholyangel said:
As for consulting with your accountant, you think they woud lie for you?

As I said, my accountant is a good friend of mine. I doubt he would remember the details of every phone call we've ever had.

unholyangel said:
But again, you seem to think it will be for HMRC to prove it wasn't to fulfil a director duty rather than for you to prove it was.

Prior to court, HMRC might expect you to prove your version of events rather than them prove their version of events. That's not how it would work once in court, however. Innocent until proven guilty. In a civil court, it would be for HMRC to prove their version of events on the balance of probability.

If the hypothetical director actually writes that letter at the time of furlough (and not retrospectively as you were previously implying) and then ceases all work then yes, they would be furloughed. If the hypothetical director continues to check his work emails to see if any work is coming in then he is still providing services to his employer. If the hypothetical director stops work but does not write the letter until a later date then he can only claim from the later date - to claim from an earlier date would be a fraudulent claim. 

As for the email thing - again there is case law that checking emails counts as "working time". I know there are a lot of people on the internet who make stuff up and then insist it is correct. I don't. If I'm unsure or just supposing, I will say so. If I argue a point quite vehemently (as I am doing now) I can guarantee it is not just an opinion of mine but something based in fact. Not trying to beat anyone down - you want to continue with an application thats fraudulent then that's your choice. But at least if you're aware of the dangers then you're making an informed choice. 

If your accountant is a good friend, why are you on here asking? Or would they charge you and therefore perhaps not the good friend you thought? Is he such a good friend that he'd risk his professional accrediation and career to enable you to claim approximately £575-833 a month (typical director's salrary) for a few months maximum? 

You're still not understanding about HMRC. They will make a decision, it will then be up to you to challenge it. They don't need to take you to court to make a decision - nor is it open to the courts to scrutinise the decision itself, only whether that decision was in compliance with the law. They'd only be taking you to "court" if you were refusing to give them access to whatever information they had required. And it would be for you to prove you are eligible because you are the one making the claim. In any matter of law, it is for the party making the claim to prove the claim (or as you say, innocent until proven guilty - you just assumed the presumed innocence would be yours rather than HMRC's).

unholyangel

And be aware that their power to request information is not limited to business records.