In Martin Joseph Long v HMRC [2021] TC8272, the First Tier Tribunal (FTT) held that two employments could not be aggregated for the purposes of the National Insurance Contributions (NICs) lower earnings limit. The employers were not carrying on business in association with each other.

Martin Long was an ambulance driver who also drove patient transport vehicles and was employed by South West Ambulance Services NHS Trust (SWAST).

  • In 2013, SWAST retendered for the ambulance and patient transport services and was awarded the ambulance service contract. The patient transport contract was awarded to a private company, NSL Limited (NSL).
  • Thereafter Mr Long had two employers, SWAST and NSL. During the course of a normal working day, he might work for both employers. He was thought to be the only worker employed by both organisations in this way.
  • NSL and SWAST did not share premises, vehicles or equipment or provide services to each other. They provided different services as SWAST dealt with acute and emergency cases whilst NSL dealt with outpatients and care home transport.
  • In 2016, Mr Long reduced his work due to health problems claiming employment and support allowance. He was advised that he had not paid enough National Insurance Contributions (NICs) in 2013/14 and 2014/15 to qualify for the allowance. As his two jobs could not be combined to calculate his weekly earnings for NICs purposes, his income had not reached the Lower Earnings Limit (LEL).
  • HMRC issued a notice of decision showing his earnings and NICs.
  • Mr Long appealed, the FTT having previously refused to consider the position due to lack of jurisdiction, the employment support allowance being under the remit of the Secretary of State. The Grounds of appeal were that the notice was invalidly issued, earnings from the two employments should be aggregated when considering if he had paid enough NIC’s to be entitled to the allowance and the amount of NIC’s in the decision was incorrect.

The judge noted that if the tribunal were to find that the earnings should have been aggregated, they did not have jurisdiction to direct the employers to undertake the aggregation. It would be a matter for judicial review and the FTT could only come to a decision in principle then let the parties consider the implications.

The FTT dismissed the appeal.

  • The notice of decision was valid. It was issued by a flesh and blood officer as it was signed by a named individual.
  • The burden of disproving the amounts in the notice fell with Mr Long and he did not provide any evidence that the amounts were incorrect.
  • In order for the earnings to be aggregated NSL and SWAST must have carried on business in association with each other and they had not.
    • There was a clear distinction between the services provided by each organisation.
    • They were wholly independent of each other when it came to their premises, their vehicles, their financial administration and governance. NSL was a private company working in the public sector, SWAST was an NHS trust.
    • That Mr Long might transport the same person twice in one day, once in an emergency for SWAST and later to a different destination for NSL was not enough to establish a business association between SWAST and NSL. Nor was the fact the grant of and ultimate funding for the contracts for both SWAST and NSL came from the same government department.

Useful guides on this topic

National insurance: what’s the maximum amount payable? 
What are the maximum limits for National Insurance Contributions (NICs)?

How to appeal an HMRC decision
Disagree with a HMRC decision? How to appeal, what type of decision can you appeal, what are your different options when you disagree with HMRC? What are the key steps in making an appeal?

External link

Martin Joseph Long v HMRC [2021] TC8272 

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