An overview of the current expense legislation

But what about the person who visited four or five locations a year, spending a few months at each location?  A Mr Hindmarsh took HMRC to court on this very point and lost. The judge decided that each location was his place of employment and therefore he was travelling to and from work but the judge did comment about the “harsh consequences” of the legislation.

There was no doubt that the old legislation did not reflect current working practices and the decision was made to rewrite the legislation so as to grant relief to the Mr Hindmarshs’ of this world.

The legislation was expanded to grant relief to a person who holds one job and moves between sites within that job.

The old legislation was very restrictive while the new legislation is more relaxed but is still constraining. The above statement is the general principle – there will still be cases where a person moves between sites and isn’t entitled to relief, and there will be very rare cases where a person does not move and is entitled to relief.

Do not forget that the old legislation is still there – if you qualified under the old legislation then you will still qualify – the new legislation adds to and is a relaxation of the old.

Ordinary Commuting

The new legislation does not permit travel which is ordinary commuting.
The general concept of ordinary commuting is that of the person who gets up in the morning – goes to work – starts work when he gets there – finishes work in the evening and then returns home to repeat the process the following day. He continues to do this until: -

• he changes his job;
• retires;
• gets the sack;
• is made redundant.

Compare a man who works for five employers in the year at five separate locations with the man who has one employer during the year and works at five locations. In the first instance it appears that the job is temporary and the location WITHIN EACH EMPLOYMENT does not change – therefore the workplace is not temporary. The workplace doesn’t change. It is the same throughout the whole of each employment. In the second instance - the man who has one employer – the workplace is temporary because it changes – he moves from workplace to workplace within the employment.

It is an important principle, therefore, that if you remain at the same location throughout the period of your employment you will probably not qualify for travel expenses even if you have a number of employers in the year. (There is a possible exception to this – see expectation).

Legal Definition of Ordinary Commuting

First of all you cannot claim for ordinary commuting.

In a nutshell it is travel between a person’s home and a permanent workplace. So you then have to look at what constitutes a permanent workplace.

A permanent workplace is a place regularly attended that is not a temporary workplace – so we then have to look at the definition of a temporary workplace.

A temporary workplace is a place attended to perform a task of limited duration or for some other temporary purpose. The problem with this definition is that is can cover a whole host of situations which those writing the legislation had to address. There are two very important provisos.

First - say I am an employer and I send someone to perform a task that will last five years – say to manage the building of a massive airport from scratch. It is a task of limited duration but five years is a long time and there has to be an upper limit. That limit was set at 12 months when the legislation was drafted and was later changed to 24 months. So if the attendance at the workplace will last for more than 24 months then the travel is not allowable from day one.

Second – I am out of work and I see that a temporary job is advertised – six weeks work as an assistant in a local shop for a shopkeeper who has just the one premise. Without doubt the task is of limited duration but the whole of the task will be performed at the one location. Attendance at the workplace comprises the whole of the period of the employment. Throughout the whole of the period of employment I will attend the one workplace. The workplace cannot change, as there is only one shop. In this case the it is not the workplace that is temporary but the job. We have a temporary job but during our period of employment the workplace will not change. Throughout the whole of the period of the employment I make the same journey every day – and that, in this case, has to be ordinary commuting.

Problems arise where things are not clear-cut. Where a person genuinely doesn’t know whether a job will last 24 months or where a move to another location is a possibility. Under these circumstances the legislation provides for likely events and reasonable assumptions