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Tackling diversity and exclusion in the film and television industry

2 August 2016

 

HMRC needs to change its rules so that people from disadvantaged backgrounds can enter the film industry; the partner of a leading firm of chartered accountants is calling for.

Damian Mildener, who is a partner at BKL Chartered Accountants, said: “The freelance nature of the industry and the short nature of the contracts for specific film and television productions act as a barrier to entry. Without the security of regular employment, it is extremely difficult for people from poorer backgrounds to survive working as runners, extended periods between jobs and the cyclical nature of the industry.”

Damian, who has been advising film and production companies since 1997, said: “What we need to do is to change the rules in the industry to tackle social exclusion. A simple but effective way to alleviate the financial pressure that makes many talented people dismiss the industry would be to recognise that all grades within the industry carry that element of risk and should be deemed to be freelance.

“This would mean that their income would suffer no PAYE or NICs deduction at source and they would be able to deduct more expenses in determining the taxable amount.”

Damian said that currently even if people were trained and provided the skills to work within the industry, the lack of certainty of income meant that it is not economically viable for many from disadvantaged backgrounds.

The rules relating to freelancers and employment in this industry are enshrined in HMRC’s Film Industry Guidance notes. These dictate which grades qualify as schedule D and can be treated as self-employment, anything that falls outside these grades is deemed to be an employment and PAYE is deducted from pay at source. As an employee they are also limited as to the expenses, which can be deducted, from their income for tax purposes.

Damian added: “These grades are fairly arbitrary if we are to consider the concept of what qualifies as a trade and the badges of trade, most jobs within the industry are similar and would fail many of the same tests.

“The one thing that they all share is commercial risk. Many of my clients tell me that they always joke that this may be their last job and they may never work again. This is a very real risk and is the reason why many entrants who do not have family support simply cannot afford to stay in the industry and this needs to change.”

Damian said that London was a particular problem for young people trying to enter the industry in terms of rent, and explained: “If you are a freelancer you are able to deduct a portion of rent and bills for the running of your freelance business from your home. This would enable new entrants to retain their money and only pay tax on their profit after deduction of expenses for the year under the Self-Assessment system.

“This approach has the advantage of simplifying a system that is often misunderstood by the engaging production companies and subject to fads at the BBC and ITV.”

He added: “I have lost count of the times that I have had freelancers negotiating deals only to be told that they cannot pay them in the fashion they are entitled to be paid because of the HMRC rules that have been misinterpreted by the production companies (the most recent case at the BBC referring to the Inland Revenue rules which ceased to exist way back when).”

There seem to be a couple of major drawbacks to this system, the biggest one being that if you are self-employed you are not entitled to Jobseeker’s Allowance or Housing Benefit

Damian commented: “If you are self-employed, you are not entitled to Jobseeker’s Allowance or Housing Benefit. If your work is infrequent and sporadic this safety net is vital and removal of these entitlements would likely deter disadvantaged individuals.

“However, this could be addressed by adopting a similar approach to that recently used to support the acting profession, although the income is deemed to be self-employed, Class 1 National Insurance was deducted from pay at source and their benefit entitlements retained.”

The loss of tax revenues by moving to this system would be tempered by the production companies paying Employer’s National Insurance at 13.8%.

Damian explained: “If this system were adopted universally across all grades, it would be very simple to implement but it could be prohibitively expensive for top grades within the industry. It would need to be considered carefully whether the existing grades should remain exempt or if it would be simpler just to introduce cap after which no NICs were payable by either the freelancer or the production company.

“Introducing a cap would be simpler and easier to implement, for example any weekly salary above £1000 would be exempt from Class 1 NICs. This may sound high but given the sporadic nature of freelance work it would not be unusual for someone to work 3-6 months of a year (£13,000 – £26,000).”

Damian said: “The introduction of these rules would also mean that the use of limited companies would be simpler to understand for the production companies. The current chopping and changing of the BBC and ITV rules in dealing with freelancers operating through limited companies with no regard for the actual tax rules as they stand would cease if everyone were regarded as freelance.

“The choice would be between having the protection of the benefits system and operating through a limited company. Given the recent increases in the Income Tax rates for dividends means the savings by operating through a limited company are greatly diminished, so freelancers should be able to make their judgments for themselves and their families based on sound professional advice rather than the prevailing political climate.”

He added: Currently we receive numerous questions from freelancers saying the BBC or ITV will only pay me if…. and most of the time the conditions are often inaccurate interpretations of the rules – this needs to change and it would help if people were treated as freelancers.”