News · End-hirers and recruitment agencies · OPRaaS Platform
When outside IR35 classifications fall from 91 per cent of new engagements to just 3 per cent, the important question is not whether one percentage is right. It is whether the organisation can explain and evidence the decisions behind both.
That question arises from FCSA’s analysis published on 11 November 2026 of the Cabinet Office’s 2025-26 annual report and accounts.
According to FCSA, the Cabinet Office core department classified 202 of 222 new engagements outside IR35 in 2019-20, approximately 91 per cent. In 2025-26, it classified 2 of 65 outside IR35, approximately 3 per cent. These are different annual populations, so the movement does not by itself establish that earlier decisions were wrong.
The accounts recognise an estimated gross IR35 liability of £38.467 million and disclose a possible additional penalty of up to £8.9 million. Neither amount should be mistaken for a final concluded HMRC assessment. In a parliamentary answer on 30 October 2026, the Cabinet Office confirmed that HMRC’s audit remained ongoing, the final liability had not been determined, and the possible penalty was a separate remote contingent liability.
For public sector organisations, end-hirers and recruitment agencies, the lesson is about the quality of the underlying evidence. A change in the proportion of outside IR35 determinations may be entirely justified. The challenge is demonstrating why.
What a sharp fall in outside IR35 determinations means
Under Chapter 10 of Part 2 ITEPA 2003, public authorities and medium or large private sector clients generally determine the tax status of relevant workers providing services through intermediaries. The client must take reasonable care in deciding whether the worker would be regarded as an employee for tax purposes if engaged directly.
Different roles, contracts, working practices and procurement arrangements can legitimately produce different outcomes. A change in the outside IR35 rate is therefore a reason to investigate, not proof of a breach.
An outside IR35 determination is only as defensible as the facts and reasoning recorded behind it.
FCSA reports that the Cabinet Office estimate involved extrapolation across four groups of roles rather than an individual review of every engagement. This illustrates the potential financial scale of uncertainty across a large contractor population, although it does not mean that a particular method of extrapolation would automatically apply to another organisation.
What HMRC expects when assessing reasonable care
HMRC’s Employment Status Manual ESM10014 says clients should act as a prudent and reasonable person would in their position. Expectations depend on the organisation’s resources, experience and circumstances. HMRC expects clients to preserve sufficient records showing how decisions were reached.
Four practical checks
- Review existing engagements. Check that determinations remain accurate and that mistakes are identified rather than repeated.
- Reassess material changes. Make a fresh determination when relevant contractual terms or actual working practices materially change.
- Improve the process. Review and amend assessment procedures where weaknesses emerge.
- Oversee outsourced assessments. Check the processes used by external providers. Outsourcing an assessment does not remove the client’s reasonable-care responsibility.
A valid status determination statement (SDS) must state the conclusion, explain the reasons and be reached with reasonable care. A simple inside or outside label is not enough. HMRC explains these requirements in ESM10013.
Disagreements have a 45-day deadline
Under the client-led disagreement process, a client must consider representations from a worker or deemed employer and respond within 45 calendar days of receipt. Failure to comply can transfer responsibility for relevant further PAYE payments to the client. The original determination continues to apply while the disagreement is considered.
Records should therefore show when a disagreement arrived, what was considered, the response given and when it was communicated.
Penalties depend on the circumstances
HMRC factsheet CC/FS7a gives a 15 to 30 per cent range for careless inaccuracies following prompted disclosure, where that penalty regime applies. Certain careless penalties may be suspended for up to two years if HMRC can set suitable conditions. These general penalty rules should not be read as confirmation of the outcome of the Cabinet Office case.
Why recruitment agencies should scrutinise status determination statements
Where an agency is the deemed employer under the off-payroll rules, it must operate the relevant PAYE and National Insurance arrangements for engagements determined inside IR35. The client’s duty to take reasonable care in the status decision is distinct from the agency’s fee-payer obligations.
An agency is not automatically required to repeat every client’s assessment. It should, however, identify missing or contradictory documentation, pass the SDS through the contractual chain where required, and understand its own obligations. HMRC’s guidance for deemed employers explains those responsibilities and the right of a deemed employer to challenge a determination.
A one-line classification without supporting reasons should prompt clarification, not be treated as a complete SDS.
Umbrella arrangements create a separate PAYE risk
Genuine umbrella employment is different from an engagement through a worker’s personal service company. However, it does not remove labour supply chain risk.
Section 24 of Finance Act 2026 inserted Chapter 11 into Part 2 ITEPA 2003. For relevant payments from 6 April 2026, the rules can make the agency contracting with the end-client jointly and severally liable for umbrella PAYE, or the end-client in specified circumstances, including where there is no agency. HMRC’s labour supply chain guidance explains the scope.
This is a distinct regime from IR35. Both underline the need to know who engages the worker, who pays them and which organisations sit in the contractual chain.
Why workforce classification records matter
Module 3 of the OPRaaS Labour Supply Chain Assurance (LSCA) Self-Certification Course addresses contingent workforce tracking, including worker classification, the legal employer or paying entity, and the evidence supporting each classification.
Its practical questions include whether an organisation can produce a compliant workforce headcount report within 24 hours and reconcile worker records against timesheets, invoices and Real Time Information reporting. These are useful governance tests, although they are not themselves statutory IR35 deadlines.
For each relevant engagement, organisations should be able to retrieve the SDS, the underlying contractual and working-practice evidence, the reasoning, the communication record and any later review or disagreement.
How the OPRaaS Virtual Compliance Director supports assurance
OPRaaS combines labour supply chain training, supplier auditing and evidence management through its OPRaaS Virtual Compliance Director (OPRaaS VCD) approach. It helps organisations develop a more consistent and auditable view of their contingent workforce and the suppliers involved.
An effective IR35 evidence process should retain the determination and its reasons, the facts considered, any CEST assessment used, the issue and delivery dates, and subsequent reviews. Organisations should also monitor trends in determinations by role or department and investigate unexplained changes.
Wider supplier assurance may include Companies House information and Creditsafe credit-risk intelligence where these form part of the organisation’s agreed checks. Such monitoring complements, but does not replace, individual employment status assessments.
OPRaaS is named as a supplier on the UK Government Commercial Agency (formerly Crown Commercial Service) Audit and Assurance Services Two framework (RM6310), Lot 2: External Audit and Lot 4: Other Independent Assurance, and is registered on the RM6219 Learning and Training Services and RM6237 Low Value Purchase System dynamic purchasing systems. The OPRaaS LSCA platform is available on G-Cloud 15 (RM1557.15), Lot 2b: Software as a Service.
What end-hirers and recruitment agencies should check now
The government’s employment status consultation published on 14 October 2026 concerns employment rights rather than a replacement for the current off-payroll tax rules. Organisations should continue to follow the legislation and HMRC guidance currently in force.
A useful exercise this quarter is to chart the proportion of outside IR35 engagements over several years, identify material movements and examine whether the engagement-level evidence explains them. Check whether roles or working practices changed, whether the SDS included reasons, whether it reached the right parties and whether any disagreements were handled on time.
The central question is not whether an organisation has a high or low proportion of outside IR35 engagements. It is whether each determination can be justified by the relevant facts and evidence.
Compliance is your asset. Evidenced daily.
Read next
IR35 status determination and the reasonable care test
Sources and further reading
- FCSA, Cabinet Office IR35 analysis, 11 November 2026
- Cabinet Office annual report and accounts 2025-26
- Parliamentary answer, 30 October 2026, on the ongoing audit and contingent penalty
- HMRC ESM10013, valid status determination statements
- HMRC ESM10014, reasonable care
- HMRC ESM10015, client-led disagreement process
- HMRC CC/FS7a, penalties for inaccuracies
- Finance Act 2026, section 24, umbrella companies
Talk to OPRaaS about your labour supply chain.
For organisations reviewing IR35 determinations, recruitment supply chains or wider contingent workforce assurance, email info@opraas.co.uk or use the contact form alongside this article.
This article is editorial commentary by OPRaaS Limited (On-Pay-Roll-as-a-Service), drawing on published research, legislation and government guidance. It provides general information and does not constitute legal, tax, employment or compliance advice. Obligations vary according to organisation, contractual arrangements and individual engagements. Appropriate professional advice should be obtained before acting on a specific position.