ESM9020 - Basic principles: off-payroll working: meaning of public authority and statutory exclusions for statutory auditors and provision of pharmaceutical and ophthalmic (opticians) services

Section 61L(1) Chapter 10 ITEPA 2003

Regulation 3A The Social Security (Miscellaneous Amendments No.2) Regulations 2017

For the purpose of Chapter 10 ITEPA 2003 “public authority” means;

a) A public authority as defined by the Freedom of Information Act 2000 (FOIA);

b) A Scottish public authority as defined by the Freedom of Information (Scotland) Act 2002 (FOISA);

c)The Corporate Officer of the House of Commons;

d)The Corporate Officer of the House of Lords;

e)The National Assembly for Wales Commission; or

f)The Northern Ireland Assembly Commission.

For the purposes of Chapter 10 an authority within a) and b) above is a “public authority” even if only part of its activities are included within FOIA and FOISA.

Statutory exclusions

Statutory auditors

Holding office as a statutory auditor of the client does not count as holding office under the client for these purposes. Here “statutory auditor” means a statutory auditor within the meaning of Part 42 of the Companies Act 2006. Further guidance on the meaning of office holder can be found at ESM2500 onwards.

Provision of pharmaceutical and ophthalmic (opticians) services

The FOIA/FOISA provides that “public authority” includes:

any person providing:

in England and Wales

  • primary medical services, primary dental services or primary ophthalmic services
  • general medical services, general dental services, general ophthalmic services or pharmaceutical services
  • personal medical services or personal dental services

in Northern Ireland

  • primary medical services, general dental services, general ophthalmic services or pharmaceutical services

in Scotland

  • primary medical services under a general medical services contract (within the meaning of the National Health Service (Scotland) Act 1978) or general dental services, general ophthalmic services or pharmaceutical services
  • primary medical services or personal dental services

Subsections (3) to (5) of Section 61L limit the definition of “public authority” for the purposes of Chapter 10.

A “primary-healthcare provider” is a public authority only if it:

  1. has a registered patient list for the purposes of the relevant medical-services regulations. These are: the Primary Medical Services (Sale of Goodwill and Restrictions on Sub-contracting) Regulations 2004 (S.I. 2004/906) and the equivalent regulations for Wales (S.I. 2004/1017), Scotland (S.S.I. 2004/ 162), and Northern Ireland (S.R. (N.I.) 2004 No. 477).

Broadly this includes:

  • contractors, performers or providers, who have a registered patient list, and
  • contractors, performers or providers, who must provide these patients with essential services during core hours.

In effect this means general practitioner surgeries or practices providing NHS treatment, who are required to maintain a list of patients.

  1. is within paragraph 43A of Schedule 1 to FOIA (providers of primary healthcare services in England and Wales) by reason of being a person providing primary dental services;
  2. is within paragraph 51 of Schedule 1 to FOIA (providers of healthcare services in Northern Ireland) by reason of being a person providing general dental services; or
  3. is within paragraph 33 of Schedule 1 to FOISA (providers of healthcare services in Scotland) by reason of being a person providing general dental services.

In effect this means dental surgeries and practices providing NHS dental services under FOIA and FOISA are within scope, even where they undertake some private work. A private practice which is not otherwise within scope of FOIA (providing primary or general dental services) or FOISA (providing general dental services) will not be in scope.

A “primary-healthcare provider” means an authority that is within FOIA or FOISA only because it is within:

  1. any of paragraphs 43A to 45A and 51 of Schedule 1 to FOIA (see above), or
  2. any of paragraphs 33 to 35 of Schedule 1 to FOISA (see above).

The effect of subsections (3) to (5) is that retail businesses providing ophthalmic and pharmaceutical services on behalf of the NHS will not be required to consider whether to apply the off-payroll working in the public sector rules to contractors working for them through an intermediary.

The definition of “public authority” retains the need for NHS hospitals to consider whether to apply the off-payroll working in the public sector rules to all contractors working for them through an intermediary. This includes contractors, who are providing ophthalmic and pharmaceutical services, (again, where they are working through an intermediary).

The definition of “public authority” continues to include general practitioner surgeries and dental practices or surgeries providing NHS medical and dental services. This means these entities are required to consider whether the off-payroll working in the public sector rules should be applied to contractors working for them through an intermediary.