TNAG-2000-FCO40-2847-Hong-Kong-Civil-Service-appointments--promotions-and-policy--1990 — Page 20

MF(N) 121A

Department of Social Security Central Office Longbenton

Newcastle upon Tyne England NE98 1YX

DSS

Mr S Leng Area 8D

DWO (N)

Malaya Lines

Sek Hong

BFPO 1

飚

Rey B.

Telephone Direct line

53124

091-22

or

Switchboard 091-2135000 Ext

53124

Your reference

Our reference

OSC/U5

Date

que

November 1990

Dear Mr Leng

NATIONAL INSURANCE NUMBER YL457839A

Thank you for your letter of 15 October 1990.

As explained in our letter of 10 October 1990 there is liability for Class 1 contributions for the first 52 weeks of employment abroad when an employee, amongst other things, works for an employer with a place of business in Great Britain.

There is no definition in the Social Security Act or the regulations made under it of the phrase "place of business". This means that in interpreting the phrase the Department must look at decided cases in English law generally and apply the principles to be deduced from such decisions to the particular circumstances with which the Department is faced in the Social Security field.

There is no direct legal authority on the meaning of "place of business" but the phrase "carrying on a business" occurred in the Counter Inflation legislation of the early 1970s, and in one case (Town Investments Ltd and Others versus Department of the Environment [1978] AC 359), the Courts had to decide whether that phrase covered the activities of a Government department. The House of Lords held that it did, commenting in passing, that in the circumstances of the legislation the phrase "carrying on a business" had to be given a wide interpretation.

In another case Linden versus Department of Health and Social Security [1986] WLR 164, it was held that a tenancy held by a Government department could be a business tenancy within Part II of the Landlord and Tenant Act 1954. This established that premises where Government activities are being carried on can be a "place of business" and there is no reason why this should not apply equally to the activities of foreign Governemnts taking place in this country.

I hope, in the light of this explanation, that you will see why the Department considers that a foreign Embassy, High Commission or Government office is a "place of business" for the purposes of the Social Security Contribution Regulations.

You have stated on form CF83 dated 4 June 1990 that you are employed by the Architectural Services Department of the Hong Kong Government. As the Hong Kong government has an office in London, it follows that they have a place of business in Great Britain and as a consequence you satisfy all of the conditions (set out in our letter of 10 October 1990), governing the payment of Class 1 contributions abroad.