DANSP39300 - Notices of decision: Wording of decisions about whether non-payment of primary Class 1 National Insurance contributions is due to primary contributor’s consent, connivance or negligence

DANSP24000 explains that appealable decisions can be issued which tell a person whether, in a case where the secondary contributor has failed to pay a primary Class 1 contribution on behalf of the primary contributor, that failure was with the consent or connivance of the primary contributor or attributable to any negligence on the part of the primary contributor, as mentioned in regulation 60 of the Social Security (Contributions) Regulations 2001 (SI 2001 No 1004) (the Regulations).

Persons named in a decision

In most cases the DAA1(A) should be issued to the primary contributor. That is because, in most cases where such decisions are required, it will be because HMRC considers that the failure to pay the primary National Insurance contributions (NIC) was

  • with the consent or connivance of the primary contributor, or
  • attributable to negligence on the part of the primary contributor.

If either of these apply

  • primary NIC cannot be treated as paid, and
  • if the primary NIC are paid more than two tax years after they were due to be paid, they will be marked as extra late paid, which means they cannot be used to determine entitlement to contributory benefits.

If the DAA1(A) is sent to the primary contributor and you name the employer in the decision you will need to send the employer a DAA1(B) and explain why they are being sent a decision without compromising the primary contributor’s confidentiality. Try, therefore, to avoid naming the employer in the decision. Make it clear in a covering letter to which employment the decision relates.

Period covered by a decision

When you issue such a decision refer to the period or periods for which the primary contributor was liable to pay Class 1 NIC. If you don’t know the exact period show the start and end dates of the tax year or years concerned.

The examples below apply the legal requirements and general principles for wording decisions in DANSP29200 and DANSP29300. They are also worded in such a way as to avoid naming the secondary contributor.

Example one

My decision is that:

The failure to pay primary Class 1 contributions during the period from 6 April 2020 to 5 April 2021 was attributable to your negligence.

Example two

My decision is that:

The failure to pay primary Class 1 contributions during the period from 6 April 2020 to 5 April 2021 was with your consent or connivance.

Commentary on examples

Before issuing such a decision, HMRC should have told the primary contributor why

  • the primary NIC cannot be treated as paid, and
  • they cannot be treated as paid on time.