What criteria will HMRC use to assess applications for furlough from publicly funded organisations?
The government released further clarification on the Coronavirus Job Retention Scheme on 4 April. The wording referred to concerning public sector organisations and organisations receiving public funding remains the same.
The revised guidance does provide a helpful insight into how HMRC will deal with applications made to it for assistance under the scheme. It appears that there won’t be a particularly forensic approach adopted by HMRC. The guidance says you can furlough staff if you cannot maintain your current workforce because your operations have been severely affected by coronavirus.
It goes on to say that all employers are eligible to claim under the scheme and the government recognises different businesses/organisations will face different impacts from coronavirus. The need to demonstrate the impact of coronavirus on your business/organisation is not one of the criteria businesses/organisations are going to need to satisfy, so the government does not appear to intend to set a specific test to determine if a business/organisation is “severely impacted by coronavirus”. It is hoped that this should provide additional comfort to publicly funded organisations facing significant restrictions to their operations during the Covid-19 crisis.
Related FAQs
The guidance has confirmed that all remaining employment rights and terms continue while an employee is furloughed. Holiday will continue to accrue during furlough however you may reach agreement with employees on reducing entitlement provided that it does not fall below the statutory minimum of 5.6 weeks per year.
If it is not possible to find work for the employee to do at home, you do have the option of putting the employee on furlough.
- Delays in preparing and submitting applications to comply with pre-commencement conditions. In this respect there can be lengthy timescales gathering evidence to support applications to comply with pre-commencement conditions, ecology, contamination and archaeology are examples of matters which can require significant periods of survey work
- Following on from the above the ability to get required experts on the site necessary to undertake the required survey work
- Delays in the determination of applications to comply with pre-commencement conditions. In this respect whilst there are deemed discharge provisions/procedures concerning certain matters, the provisions cannot be used to discharge all types of conditions
- The ability to get people on site to undertake material operations
In the circumstances, it is advisable to start considering the implementation of the planning permission early and the earlier the better. Under current legislation whilst it is possible to vary conditions, albeit potentially leading to wider issues, it is not possible to extend the life of a planning permission meaning that lawful implementation is essential to avoid the loss of that permission.
If a planning permission is lost, amongst other things it may not be granted again or may not be granted on similar terms. In the circumstances, it is advisable to seek advice given the specific facts of the case to minimise the risk of a planning permission not being lawfully implemented and expiring.
The latest Cabinet Office guidance published Monday 6 April 2020 titled ‘Procurement Policy Note PPN 02/20: Additional guidance. FAQs and model terms for construction’ provides model deeds of variation for JCT and NEC3 contracts to provide for such payments to be made. As the Cabinet Office guidance states, legal advice is likely to be required to make sure that the model variations work with your specific contracts. Please contact one of our construction specialists if you need advice and assistance.
For a copy of the guidance note click here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/878338/PPN_02_20._Additional_guidance__FAQS_and_model_terms_for_construction.pdf
As we all adjust and adapt in line with the Government’s guidance throughout this uncertain time, we must consider how we can revise current processes and implement new ones to maintain effective and compliant ways of working. We have identified several key issues that all housing providers should consider.
Protocol Compliance
Housing providers will continue to receive new disrepair claims. Throughout the disruption caused by coronavirus, landlords will still be expected to respond to these claims and comply with the Pre-Action Protocol for Housing Conditions Claims whilst doing so. We address the issue of disclosure in particular below.
Letters of claim will continue to be sent by post to your Registered Office, and the deadlines will run from the date of deemed service. Ensure you have systems to enable you to scan correspondence and forward it to the responsible officer who will handle the claim so deadlines are met.
Under the Protocol, the deadline for disclosure is 20 working days from deemed service of a letter of claim (2 working days after it is sent). So, for example, a letter dated 2 March 2020 would be deemed served on 4 March 2020 and disclosure would therefore be due by 1 April 2020. All housing providers must continue to comply with the Protocol and so landlords should begin preparing now.
Failure to meet deadlines often result in the issuing of further applications to court by tenant’s solicitors which in turn will lead to unnecessary costs orders against landlords.
Therefore, all records, particularly relating to customer contact and repair logs, should be held electronically. If required, this will allow for such documentation to be redacted for GDPR purposes remotely and disclosed to the tenant’s solicitor simply and efficiently.
Remember it is possible to request an extension to all Protocol deadlines and it is inevitable in these unusual times, this will need to be utilised, and should not be refused. Request extensions to deadlines at the earliest opportunity to enable an achievable timescale. It would be a difficult lawyer that would not agree to such a request.