How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Ash Your Own Question

Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
75100385
Type Your Law Question Here...
Ash is online now

1. At all material times the Claimant, a Bulgarian National,

Resolved Question:

1. At all material times the Claimant, a Bulgarian National, was and continues to work as a self-employed Chef.

2. The Defendant is understood to retain the services of a number of chefs, some under a formal employment relationship, and others on a self-employed basis. From May 2011 up until the 5 December 2012 the Claimant provided his services to the Defendant. It was agreed between the parties that the Claimant would be paid by reference to the number of hours worked. The Defendant was to account to the Defendant with payment on a monthly basis, with deductions being made for any accommodation provided by the Defendant during that time.

3. In May 2011 and when the parties initially entered into a contract with each other the Claimant was awaiting his National Insurance Number from HMRC for tax purposes. As a result of this the Defendant retained during the course of the contract certain sums on account of tax. This was despite the Claimant’s services being retained on a self-employed basis.

4. By email dated 15 April 2013 Mr ............, on behalf of the Defendant, confirmed that the Defendant continued to hold the sum of £3,444.49 on account of tax, plus £1,512.94 in respect of the final payment due to the Claimant for the hours worked from 5 November to 4 December 2012. Subsequent to this the Defendant paid the sum of £1,216.55 to the Claimant for the period 5 November to 4 December 2012, leaving a balance owing to the Claimant, according to the Defendant’s figures of £3,740.88. This figure differs slightly to the Claimant’s calculations, although in the Defendant’s favour. The Claimant believes that the following sums have in fact been retained, and giving a total of £3,705.77 outstanding to the Claimant.

Date: Sums retained:

13.9.2011 £500.00
11.1.2012 £194.56
14.2.2012 £200.32
12.3.2012 £237.72
13.4.2012 £333.18
9.5.2012 £217.63
6.6.2012 £256.25
5.7.2012 £231.58
2.8.2012 £305.56
22.8.2012 £157.22
18.9.2012 £344.31
18.10.2012 £237.84
19.11.2012 £193.21
19.12.2012 £296.39


5. The Claimant now has a National Insurance from HM Revenue and Customs and is required to complete a tax return for the year ending April 2013. The Claimant is not aware of the Defendants having accounted to HM Revenue and Customs directly with the sums retained and he requires the funds held so that he may do so when completing and filing his annual tax return.

6. The Claimant accepts that to be deducted from the amounts owing by the Defendant is the sum of £50 to reimburse the Defendant for items of food eaten by the Claimant from the Defendants’ kitchen. Such items were eaten in the mistaken belief this was permissible, without charge, and upon the Claimant having witnessed other chefs taking food. Aside from this the Claimant continues to look to the Defendant for payment of the balance retained of £3,655.77.

AND THE CLAIMANT CLAIMS

1. The sum of £3,655.77

2. Interest pursuant to Section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of each retention identified above until the date of these particulars and totaling £274.21.

3. Further interest pursuant to Section 69 of the County Courts Act 1984 at the rate of 8% per annum equivalent to the daily rate of £0.80 from the date of issue hereof and continuing until Judgment or sooner payment.

So thats my claim!

Answer and counterclaim states:
Submitted: 3 years ago.
Category: Law
Expert:  Ash replied 3 years ago.
Hello my name is XXXXX XXXXX I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply, but rest assured I will be giving your question my immediate attention upon return You do not need to wait here as you will get an email when I reply.

That's your claim but what is your question?

Customer: replied 3 years ago.

sorry i didn't have enough space to write all.



Answer and counter claim states:



Mr ……. has requested a refund of monies held in relation to NI/tax contribution during his tenure at the ……The ……….has no issue with this sum however we are concerned that our liability to HMRC will prevail if these funds are not paid directly to them.



We requested from Mr …….. solicitors evidence that this sum has been paid directly to HMRC but have yet to be furnished with completed documents. Documents received from the claimants legal adviser have been verified by our accountants as part filled. Further to this we have made enquiries with HMRC but have faced difficulties in respect to data protection, we are continuing to pursue this enquiry with HMRC.



The claimant has been self-employed or employed in the UK since 2008- this has been verified by reference checking with business that the claimant has worked for. We have been advised by HMRC that any self employed person carrying out services for ………, who were found not to be making relevant payments to the HMRC would leave the business liable. Monies held were agreed with the claimant when the business required proof of Tax receipts, which were not forthcoming after a 6 month tenure. The Claimant was provided with accommodation at the ………during his tenure, but was ejected due to repeated theft, it was after this point the claimant requested the monies to be released. WE have requested from …….. solicitors evidence that the appropriate sums have been paid to HMRC but have yet to be furnished with completed documents. Documents received from the claimants legal adviser have been verified by our accountants as part filled. Further to this we have made enquiries with HMRC but have faced difficulties in respect to data protection, we are continuing to pursue this enquiry with HMRC. We now understand the claimant has worked in the UK without an NI until 2013 MR… CV would have led any business to believe he has legal work status.



Our counter claim relates to …..police incident were MR ….admitted continuous incidents of theft from the hotel.The matter was not pursued as we both signed a restorative Justice Form.


The claimant admitted to this sum which was video recorded. We would like to be advised how we can submit this.



Reply to this:




  1. 1. Save where expressly admitted the Claimant raises issue with the Defendant on each and every matter raised in her Defence.




  1. 2. The Claimant relies upon the Statement of Case set out in the Particulars of Claim.




  1. 3. It is unclear from the Defence received if the Defendant is in true dispute with any of the Claimant’s claim, subject to any right of set-off she may seek to assert, although has not presently asserted, in relation to the counter claim issued and which the Claimant responds to separately below.




  1. 4. Whilst at section 1 of the Defence the Defendant only appears to admit the sum of £2,482.32 at section 3 the Defendant admits that she has no issue with the sums claimed by the Claimant, save that they are being retained on account of potential tax liabilities, which concurs with an email received from MR…… of the Hotel on the 15 April 2013 and which stated “I have just been advised by our accounts department that £3444.49.39 Has been held for Tax and that £1512.94 was held as the last invoice”. To the extent that the Defendant denies holding anything other than £2,482.32 in respect of tax then the Defence received fails to identify what grounds, if any, the Defendant takes issue with or seeks to defend the remainder of the Claimant’s claim.




  1. 5. As for the reasons given by the Defendant as to why payment has been withheld, there is no evidence the Claimant will or has failed to account to HMRC for all tax due on earnings received or of any formal demand having been made directly to the Defendant by HMRC. The Defendant’s concerns that she may yet be held accountable to HMRC are unfounded.




  1. 6. In relation to the Defendants assertions that evidence of declaration of income to HMRC has been requested but not provided, this was sent to her on the 2 April 2013 and following a request dated 1 March 2013 for proof that “monies paid by the Hotel have been accounted for via TAX returns plus associated costs & Self Assessment for the period 2011-2012 & 2012-2013”. At that time the Defendant was provided with a copy of those relevant pages only of the Claimant’s 2011-2012 tax return and which had been submitted online to HMRC on the 25 February 2013 and identifying a self-employed turnover of £17,162 to the end of the financial year. The Defendant was also reminded that the time for submission of a tax return for the then current tax year had not yet arisen but that the Claimant would be complying with his obligations in this regard in due course. The Defendant in her defence says the copy extract of the tax return provided is believed to have only been part filled, although does not elaborate further, and did not request any additional evidence of accounting to HMRC at any time following the 2 April 2013 or, indeed, indicate any reason why the sums continued to be retained. Whilst the Defendant did indicate she would respond further within 21 days no such response was ever reached.




  1. 7. The Defendant also appears to be suggesting that the Claimant was providing his services to her illegally, because he was awaiting a national insurance number at the time. This is firmly denied. As a Bulgarian National the Claimant is entitled to work in this country on a self-employed basis without permission. The Claimant applied for and has since received a National Insurance Number and is registered with HMRC for tax purposes.




  1. 8. As regards XXXXX XXXXX of repeated theft these relate to the counterclaim issued and are dealt with separately below.




  1. 9. For the reasons given above the Claimant does not believe the Defendant has a valid defence to the claim, or valid reason to withhold the sums claimed.




  1. Defence to Counterclaim




  1. 10. Save where expressly admitted the Claimant raises issue with the Defendant on each and every issue of her Counterclaim.




  1. 11. The Claimant admits that the Defendant terminated his services when he admitted eating three eggs from the Defendant’s kitchen on the 5 December 2012. However, the Claimant denies there was any theft or that the items eaten came to the value of £2,390 as claimed and the Defendant is put to strict proof as to all items it is alleged the Claimant took and their value, as paid by the Defendant.




  1. 12. Whilst working in the Defendant’s kitchen the Claimant witnessed several chefs regularly taking food from the kitchen to eat and believed this to be with the Defendant’s permission. On the 5 December the Claimant ate three eggs and, when asked where they had gone, confirmed he had eaten them. When asked he also confirmed that on a few other occasions, but certainly not to the extent asserted by the Defendant, he had eaten other food items but only when the kitchen was so busy he did not have time to take sufficient breaks and purchase food elsewhere. At all times this was in the mistaken belief it was permitted. As a result of this the police were called and the Claimant’s services terminated. At no time did the Claimant admit to eating the equivalent of £2,190 worth of food and the Defendant is put to strict proof in relation to the same. As set out at paragraph 6 of the Claimant’s particulars of claim he believes the value of the items eaten would not have exceeded £50 and has already given the Defendant credit for this.




  1. 13. The Claimant denies any further sums of money are owing, or that the Defendant has a valid counterclaim against the Claimant as alleged or at all.


 


 


 


 


And my question is if you were defendant/hotel what would you do? Or what should I be afraid/prepared to?

Expert:  Ash replied 3 years ago.
Would I be afraid - no.

This is because it is a small claim. I would fight it because even if I lost then it would only be the amount claimed, plus Court fees that would be awarded.

Even interest, you wont get 8% - 3% at most.

So yes, I would fight it.

Can I clarify anything for you about this today please?

Alex

Customer: replied 3 years ago.

When I filed tax return for 2011/12 I did not account the money held by the hotel but just the amount that I actually received from them. Would that be a problem? I did't think I should pay tax for money that I did not received. Was I wrong? I can't think of anything else that they can use against me. Can you?

Expert:  Ash replied 3 years ago.
You mean held in advance of payments? Was it held in a separate client account?

Customer: replied 3 years ago.

So the hotel held 20% of my salary for 14 months for tax purposes because I did't have NI number and therefore could pay my taxes. Once I got my NIn I filled tax return but did not include the amount /20%/ held by the hotel. They are saying that those money are held in PAYE account.

Expert:  Ash replied 3 years ago.
You should have filled out 20% as GROSS.

This is because they have taken it off.

So yes, you should include the 20%.

Does that clarify matters?

Alex

Customer: replied 3 years ago.

I include only the amount that I actually received from the hotel. I did't think I should pay tax for money that I did not received. Was this wrong? And what impact could this have to the case?

Expert:  Ash replied 3 years ago.
You should declare the GROSS amount, which is the total.

HMRC can then contact the hotel to seek your deductions. This is wrong. It may have an impact as you may not have been entitled to this money.

But it is only a small claim - even if you lose, you have only lost Court fees.

Alex

Customer: replied 3 years ago.

I think there is a misunderstanding.


I worked for the hotel as a chef on self-employed basis. I was registered as a self employed since 2008. Before it was possible to register as self without NIN now it's not. I failed to get NIN till 2013 and therefore could not fill tax return. Hotel was keeping 20% of my salary for tax purposes I left the hotel and after 2 weeks got my NIN and filled tax return for all past years but did not include 20% held by the hotel. So I worked for this money. I will lose court fees + not get my money. What should I do? Call HMRC and say I did a mistake?

Expert:  Ash replied 3 years ago.
OK - so if it was self employed you are entitled to 100% payment.

But you should have included the 100% amount. Yes call HMRC and ask to AMEND your tax return.

This is ok.

Does that help?

Alex

Customer: replied 3 years ago.

My actual question was what can hotel do not to give me my money? I have mediation in a week so I can get ready.

Expert:  Ash replied 3 years ago.
You can sue. I really don't know on what basis they can refuse.

They either need to pay it to HMRC or give it back to you.

Alex

Customer: replied 3 years ago.

I am suing them :)


We requested from Mr …….. solicitors evidence that this sum has been paid directly to HMRC but have yet to be furnished with completed documents. Documents received from the claimants legal adviser have been verified by our accountants as part filled. Further to this we have made enquiries with HMRC but have faced difficulties in respect to data protection, we are continuing to pursue this enquiry with HMRC.


Than is their defence but I have send them tax return (not full info just how much I have declared as income) and did not receive any further request from them. Just wanted professional opinion about the case.

Expert:  Ash replied 3 years ago.
Ok - they have no good reason for not paying.

I can not see how they can realistically defend it.

If this answers your question could I invite you leave feedback on my service which I hope has been excellent today, if you need more information or help then please click reply.

Please remember that I am always happy to help if you have future questions, even if I am in Court I can normally respond within a few hours. For future information, please start them with ‘For Alex W’.

Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/


Customer: replied 3 years ago.

What type of expenses can I claim. As far as I know part of the lawyer and court fees is there any other money that I can claim?

Expert:  Ash replied 3 years ago.
Only if you attend court for a hearing, 45p a mile and £90 witness expenses.

Please do remember to leave feedback.

Customer: replied 3 years ago.
Relist: Answer quality.
Did not even read the case before answering. Rushing to answer and get the money.
Expert:  Ash replied 3 years ago.
You asked:

What type of expenses can I claim. As far as I know part of the lawyer and court fees is there any other money that I can claim?

I answered you can claim Travel Expenses.

What else do you want to know?

Alex

Customer: replied 3 years ago.

Im sure you trying to answer as fast and as correct you can but I also wanna get some info for my money. If you spend little time to read the claim and the defence not just to pick words. Can they ask HMRC for full report about my tax return in details. I dont know exactly what to expect from them/hotel.

Expert:  Ash replied 3 years ago.
You have asked for more information yet given a negative rating. I am happy to continue if this was a mistake, but if not then I will not be continuing.
Expert:  Ash replied 3 years ago.
The hotel can not ask HMRC for details about you.

This is private and will ONLY be disclosed if you give permission.

I can ONLY answer your questions if you ask them, I can not guess what you want to know.

Alex
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
Ash and other Law Specialists are ready to help you
Expert:  Ash replied 3 years ago.
Hi

I am just following up on this. Is there anything else I can help with? If so, please let me know.

Alex.

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Jo C.

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
< Previous | Next >
  • http://ww2.justanswer.com/uploads/EM/emus/2015-7-7_192327_bigstockportraitofconfidentfemale.64x64.jpg Jo C.'s Avatar

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
  • http://ww2.justanswer.com/uploads/BE/benjones/2015-12-1_0437_ennew.64x64.jpg Ben Jones's Avatar

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    11553
    Qualified Solicitor - Please start your question with 'For Ben Jones'
  • http://ww2.justanswer.com/uploads/BU/Buachaill/2012-5-25_211156_barrister5.64x64.jpg Buachaill's Avatar

    Buachaill

    Barrister

    Satisfied Customers:

    1754
    Barrister 17 years experience
  • http://ww2.justanswer.com/uploads/JO/jojobi/2013-3-19_0265_maxlowryphoto.64x64.jpg Max Lowry's Avatar

    Max Lowry

    Advocate

    Satisfied Customers:

    894
    LLB, 10 years post qualification experience
  • http://ww2.justanswer.com/uploads/UK/UKLawyer/2012-4-12_9849_F2.64x64.jpg UK_Lawyer's Avatar

    UK_Lawyer

    Solicitor

    Satisfied Customers:

    750
    I am a qualified solicitor and an expert in UK law.
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    402
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    8199
    LL.B (Hons), Higher Prof. Dip. Law & Practice
 
 
 

Related Law Questions