UK COVID-19 Financial and Business Support Measures

A Summary of the UK COVID-19 Financial and Business Measures Announced by UK Government

COVID-19

Part 1 – Tax Updates

Part 2 – Liquidity Support Measures


UK Government Response to COVID-19 - Tax Updates

Winter Economy Plan – UK Chancellor Announcement on 24 September 2020

Job Support Scheme

The Chancellor announced that, from 1 November 2020, the government will contribute to the wages of employees where lower demand means they will work fewer hours than normal, as long as they are working at least 33% of their normal hours. There is no requirement for employees to have previously been on furlough, or for employers to previously have made a claim under the Coronavirus Job Retention Scheme.

Employers will need to cover the full wages for any hours actually worked and pay at least 1/3rd of the full wages for any hours not worked, with the government providing a grant for a further 1/3rd of the hours not worked, to a cap of £697.92 per month. This means that employees should receive 77% of their pay if the government contribution is not capped.

The scheme is open to all small and medium employer and to large employers who have been adversely affected by COVID-19 (with an expectation that those large employers will not make any dividends or other capital distributions whilst using the scheme). Employers will also not be able to issue redundancy notices to employees whilst taking part in the scheme.

We expect further details to be announced in due course.

FTI COMMENT:
The extension of financial support for employment after the current Coronavirus Job Retention Scheme ends on 31 October is welcomed. However, the Job Support Scheme is obviously less generous than the Job Retention Scheme and won’t help employer’s to retain employees where there is no work for them to do – this will presumably lead to a number of redundancies, especially in the most impacted sectors (such as hospitality and aviation).

We assume the process for claiming this grant will be similar to the Job Retention Scheme administered by HMRC which, for most employers, has worked well and provided fast access to much needed cash.

Self Employment Income Support Scheme Grant (SEISS)

The Chancellor announced that the SEISS will be extended with a (taxable) grant to those who are eligible for SEISS and who are continuing to trade, but face reduced demand due to COVID-19. Similar to prior grants, the sum will be calculated by reference to three months’ profits (to cover the period November 2020 to January 2021 (inclusive)), but will be 20% of average monthly profits, up to £1,875 per month (a reduction compared to the previous grants of 80% of profits up to £2,500 per month).

An additional grant, subject to adjustment due to circumstances, is planned to cover the period February to April 2021 (inclusive).

FTI COMMENT:
Many self employed people who were initially eligible for the SEISS will be pleased at the possibility for further grants, even if the amounts are likely to be a lot lower. However, there will remain many individuals who feel that they have unfairly missed out for various reasons, such as starting their self employed activity from 6 April 2019 onwards or whose self employment earnings were just above the £50,000 cut-off point.

Extension to the Temporary VAT Reduction for the Hospitality and Leisure Sector

The Government’s temporary reduction in the VAT rate on certain goods and services in the hospitality and leisure sectors from 20% to 5% will be extended from 12 January 2021 to 31 March 2021.

FTI COMMENT:
The reduction in VAT has been a welcome boost to businesses in the hospitality and leisure sector during the summer months, allowing those businesses to incentivise customer visits through decreased pricing or supporting the business and jobs through an increase to margins.

This extension will also be welcomed to support businesses through the winter. The hospitality and leisure sector will no doubt lobby the Government for a further extension until the Covid-19 crisis is resolved or for a permanent adoption to bring the UK in line with VAT treatment in many of the EU Member States.

Deferred VAT Payments

Earlier in the year the UK Government allowed all UK VAT registered businesses to defer their VAT liability for VAT periods ending February 20, March 20 or April 20 and, for those businesses on the VAT Payments on Account Scheme, those payments on account that are due on or before 30 June 2020. The deferred VAT is due to be paid on or before 31 March 2021, but the Government has now announced that rather than needing to be paid in one lump sum, businesses will be able to make 11 smaller interest free payments during the 2021-2022 financial year.

FTI COMMENT:
Many businesses have deferred significant sums of VAT and therefore the ability to pay this deferred tax in smaller amounts over a period of time will be welcomed.

Further guidance on the exact mechanism should be published shortly.

Plan for Jobs 2020 – UK Chancellor Announcement on 8 July 2020

As part of the ongoing economic response to the pandemic, the Chancellor set out his Plan for Jobs with measures targeting the retention of employees, the property market and the hospitality and leisure sector.

Coronavirus Job Retention Scheme (“CJRS”)
The Chancellor confirmed that the CJRS would end as already planned, with a flexible wind-down between 1 July and 31 October.

FTI COMMENT:
Although many had been hoping for a further extension, it seemed unlikely given the additional extensions already provided. Many in the particularly worst hit industries, such as hospitality and leisure, may continue to struggle financially in the coming months and could feel that a “one size fits all” approach to the CJRS is not the right solution. Although some of the other measures announced at the same time will provide some much needed support, further support is still needed for gyms, and other indoor leisure businesses.

Job Retention Bonus
The Chancellor announced a one-off bonus for employers of £1,000 for each employee that they bring back from furlough and who they continue to employee until the end of January 2021, subject to conditions.

Employees who are brought back must earn at least £520 per month (on average) between the end of CJRS and 31 January 2021. Payments of the bonus will be made from February 2021.

FTI COMMENT:
Any measures which help employers to bring back furloughed employees are welcomed. This bonus will provide the most support for employers on the lowest paid employees. Some employers may question whether a £1,000 bonus (which, presumably, will be subject to tax where appropriate) is sufficient incentive for them to bring back furloughed higher paid workers, particularly if they continue to struggle financially and are uncertain of their ability to continue the employment in the future. We look forward to the additional details which will be released at the end of July.

Other job support measures
In addition to the Job Retention Bonus the Chancellor announced further measures of particular interest to employers, all of which are subject to conditions:

  • The “Kickstart Scheme” providing businesses with reimbursement for 100% of the national minimum wage and associated employer national insurance contributions and minimum automatic enrolment pension contributions for new jobs created for 16 to 24 year olds who are on Universal Credit and deemed at risk of long-term unemployment.
  • Support for traineeships, providing employers with £1,000 per new trainee taken on.
  • Support for new apprenticeships, providing employers with £2,000 per apprentice hired where aged under 25 (and £1,500 where aged 25 and over) from 1 August 2020 to 31 January 2021. This is in addition to the current £1,000 payment in certain circumstances.

FTI COMMENT:
These measures will be particularly welcomed by businesses which already have an established model for recruiting younger people and providing apprenticeships and may well be enough to help other businesses consider whether it will be appropriate for them for the first time. As ever, the devil is in the detail, and we will wait to see the exact conditions, and how onerous it may be for businesses to make and substantiate claims.

Stamp Duty Land Tax (SDLT) – Temporary reduction for purchasers of residential property
Reduced rates of Stamp Duty Land Tax (SDLT) will apply for residential properties purchased from 8 July 2020 until 31 March 2021 inclusive. For this period the nil rate band is increased from £125,000 to £500,000 for standard purchases.

Purchases up to £500,000 will not pay SDLT and those above that level will benefit from a £15,000 tax reduction. Purchases of second homes and corporate purchasers of residential property will continue to be subject to the additional 3% charge, but will benefit from the reduction of up to £15,000 (due to the reduction on the standard rates).

There is also a reduction in SDLT charged on grants of residential leases where the net present value of future rents would be charged.

FTI COMMENT:
This measure is intended to stimulate and build confidence in the housing market, in order to boost consumer spending and the economic recovery. The removal or reduction of a significant transaction cost is welcomed, as is the anticipated positive effect on the construction industry.

Other Tax Updates

Tool to find support for businesses
On 22 April 2020 the Government launch a new tool to help businesses navigate the various Coronavirus related support measures that may be available. The tool takes the form of a questionnaire and, depending on the responses, provides direction to the potentially applicable support for the business.

FTI COMMENT:
Given the huge range of support measures which have been made available to businesses the support tool will be invaluable in ensuring that businesses can more easily understand which measure are applicable for them, and to help ensure that no potentially important measures are inadvertently overlooked.

Coronavirus Job Retention Scheme
The "Coronavirus Job Retention Scheme" is intended to ensure that furloughed workers will receive at least 80% of their regular salary, capped at £2,500 per month for periods where they are not working but have been kept on rather than made redundant between 1 March and 31 October 2020, and to provide financial support to businesses for this.

Although the scheme will remain operational until 31 October (subject to the tapering of the grant amount as outlined below) it will only apply to employees who have been placed on furlough on or before 10 June – businesses will not be able to claim any support for employees who are furloughed after this date.

For the period from 1 March to 31 July a grant under the scheme covered 80% of salary, capped at £2,500 per month, and the associated employer costs (i.e. employer National Insurance contributions and the minimum automatic enrolment employer pension contributions on that salary), for employees of any employer in the country who are not working, but have been kept on rather than made redundant (i.e. who have been furloughed).

From 1 August a grant under the scheme will cover reduced amounts as follows:

  • For August, a grant covered 80% of salary, capped at £2,500 per month, but will no longer cover employer National Insurance contributions or minimum automatic enrolment employer pension contributions;
  • For September, a grant will cover 70% of salary, capped at £2,187.50 per month (and will not cover associated employer costs);
  • For October, a grant will cover 60% of salary, capped at £1,875 per month (and will not cover associated employer costs).

The scheme will cover employees who were on payroll on 19 March 2020 (including both part-time and full-time employees, as well as those on agency contracts or on zero-hour or other flexible contracts). Note that “on payroll” means that an electronic payroll submission must have been submitted by 19 March 2020 – most commonly this will cover monthly paid employees who were employed at the end of February 2020. For employees with regular hours the claim is calculated by reference to the employee’s actual salary before tax as of their last pay period prior to 19 March 2020 (again, most commonly this will cover February 2020 for monthly paid employees) (excluding any bonuses or similar). For employees with variable hours the calculation is based on the higher of the same month’s earnings from the previous year or the average monthly earnings from the 2019-20 tax year (or, where employed for less than a year, the average of their monthly earnings since they started work).

For the period to 30 June claims could only be made for costs relating to employees who are furloughed – i.e. who are not working at all.

The employer will need to designate the employees as “furloughed workers” and notify them as such. A collective agreement between the employer and trade union has been deemed as an acceptable way of gaining employee consent to cease work during furlough. It is important to note that when on furlough an employee cannot undertake any work for or on behalf of the employer. For the period to 30 June employees who are on reduced hours rather than furloughed are not covered.

Whilst furloughed employees cannot carry out any employment duties, although they may undertake training. Any directors who are furloughed must still undertake their statutory duties as a director, but cannot carry out any other duties.

For the period from 1 July, employees who were already on furlough by 10 June, can be brought back to work on a part time basis – with the grant covering (at the relevant percentage, as above) the hours that the employee is not working, but which they would normally have worked. There are no minimum levels that the employee must either work or not work.

The scheme is administered by HMRC through an online portal which was launched on Monday 20 April 2020.

The portal operates on a “self-service” basis, and employers will need to manually calculate their claim, however the online resources published by HMRC include a calculator to help businesses work out how much they can claim, limited to straight forward cases. In order to help combat fraud, HMRC will run a number of background checks prior to releasing payment and may check calculations after pay-out. HMRC expect to be able to make payments six working days after the claim is made.

FTI COMMENT:
This scheme has proved extremely popular, with over 8 million workers being placed on furlough. This has obviously provided a very welcome measure for employers who are keen to retain employees during this difficult period but who are struggling to fund salary costs, (including associated National Insurance and minimum pension contributions). Employers may decide to pay furloughed employees more than the subsidy if they wish (for example, by continuing the employees regular pay) but do not have to.

The gradual ending of the scheme, over a series of months, and the additional flexibility for bringing furloughed workers back part time should provide a helpful way to assist businesses re-starting. However, it is perhaps disappointing that there are not sector or industry specific measures for those businesses that may struggle to pay the portion of costs unsupported by the Government.

With the added complexity stemming from the additional flexibility of the scheme from 1 July it will be more important than ever that businesses take time and, where required, advice to ensure that they fully comply not just with the published guidance but with the underlying legal conditions, and that they take great care in performing their calculations in determining the correct amount of grant they can claim.

It is helpful that HMRC have provided an online calculator to assist with the most straightforward cases. It is also positive to see HMRC making changes to the online claim system to allow employers to save and return to in-progress claims and to hear that HMRC are looking to implement a system to make amendments to submitted claim. However, until then it is important to note that once a claim has been submitted for a period it cannot be amended, added to, or re-submitted – so it is vital that employers are able to get the claim right in the first instance.

It is vital that employers consider their legal obligations under employment law (including equality and discrimination laws) when furloughing workers – something that many employers are unlikely to have done before. This will include gaining consent from employees and formally notifying employees they have been furloughed. There will be further contractual changes (and associated employee agreement) required if businesses decide to bring furloughed workers back on a part time basis. There are also likely to be difficult decisions for employers now that there is an end date to the scheme, including whether employees will need to be made redundant. There may be additional legal fees incurred for employers at this difficult time.

HMRC have encouraged employers to ensure that they pay their employees on their normal contractual payment date, to ensure that the grant is reported to HMRC via Full Payment Submission. If employers are using the grant to reimburse wages already paid, they do not need to make another Full Payment Submission for this amount.

On a further practical matter, it is important that employers ensure they are registered for online PAYE services in order to be able to make any necessary claims. Usually this process involves a wait of up to 10 days for an authentication code by post. In welcome news, we understand that this requirement has now been removed, allowing almost instant registration for employers.

We note that some employers have had their CJRS claim rejected, because they are in arrears with some of their tax liabilities. However, HMRC have confirmed that this was a mistake and the employers should not have been rejected for support. These employers are encouraged to re-apply to the scheme.

To assist companies in record keeping for future claims HMRC have provided a template, which is available from the ICAEW here.

HMRC’s current full guidance, covering various types of employees and situations, is available here, as well as a HMRC guidance webinar with case studies available here.

HMRC’s online calculator is available here.

Time to Pay arrangements for other taxes
The Government extended the scope of HMRC’s “Time to Pay” service – making a specific helpline (08000 159 559) available for all businesses (and self-employed individuals) who have outstanding tax liabilities that they are finding difficult to pay due to COVID-19.

These arrangements are agreed on a case-by-case basis.

FTI COMMENT:
Although partially dealt with by the VAT deferral, the extension of the Time to Pay service is crucial for the cashflow position of many businesses. Whilst some early indications suggest it is still difficult to reach a helpline operative in a timely manner, our experience is that those businesses who are dealt with by the Large Business Service are finding that they have been able to get swift agreement where needed once they have been able to speak to their Customer Care Manager (CCM) to discuss their situation.

Our experiences suggest that, once able to reach them, HMRC are currently able to quickly agree payment deferrals for quarterly corporation tax installments for a period 3 months, with limited information requirements (and without the need for detailed financial information). We understand that, on verbal agreement, HMRC will apply the deferrals automatically and that no formal confirmation will be received by the company. It is expected that further advice will be issued regard any potential longer deferrals, once this initial period has passed.

Corporation Tax - repayments for anticipated losses
HMRC has updated its Company Taxation Manual to clarify that they will consider claims for repayment of corporation tax for prior periods based on anticipated losses in the current period given the exceptional circumstances many companies are facing in the COVID-19 pandemic. Generally such claims must be made after the year end, when the quantum of the loss is certain.

Exceptional circumstances will be considered where the expected allowable tax losses will be so great in the current tax period that they are likely to comfortably exceed any relevant income in the current accounting period and the amount of taxable profits in the prior period that relate to the repayment claim. As part of the claim, companies will need to take into account how much of the accounting period has expired, any possible upturn in revenue and any other factors that may affect the ultimate loss position of the company in the current period.

As part of the claim, a company must specify the amount that it thinks is repayable and will be required to provide detailed evidence to support this. The level of evidence required will depend on the particular fact pattern of the company so each claim will be considered on a case-by-case basis. However, where a claim is made before the end of the current accounting period, in addition to management accounts and draft tax computations, HMRC will expect to see forward looking reports from the Board of Directors, any relevant public statements and external evidence which supports the fact that the relevant circumstances are unlikely to change in the short term.

HMRC have indicated that it will be extremely difficult for a company to provide enough evidence to support a repayment during the earlier parts of an accounting period as there will be more reliance on forecasts and there is a greater chance of an upturn or recovery of losses.

FTI COMMENT:
Given the scale of losses suffered by companies as a result of the pandemic, this clarification from HMRC regarding the ability to carry-back anticipated losses to generate cash tax repayments is very welcome, particularly for those companies that were cash paying in prior years and have been hit hardest by the pandemic such as the hospitality and travel industry.

Business rates holiday for retail, hospitality and leisure businesses and for nursery businesses
The Government will introduce a business rates holiday for retail, hospitality and leisure businesses as well as estate agents and letting agencies in England for the 2020/21 tax year.

All businesses in England that are in the retail, hospitality, or leisure sector or are estate agents or letting agencies will be eligible, no matter what their size. In order to benefit properties must be used (wholly or mainly) either:

  • As shops, restaurants, cafes, drinking establishments (e.g. bars and pubs), cinemas and live music venues;
  • for assembly and leisure;
  • as hotels, guest premises and self-catering accommodation.
  • as estate agents or letting agencies.

Nursery businesses in England also qualify where their properties are on Ofsted’s Early Years Register or are (wholly or mainly) used to provide Early Years Foundation Stage.

On the 25 March, the Government announced that the business rate holiday for next year would also be extended to estate agents, letting agencies and bingo halls that have closed as a result of the Covid-19 measures.

Eligible businesses do not need to take any action – the relief was applied automatically in their council tax bill in April 2020.

While business rates are devolved to the local Governments of Scotland, Wales and Northern Ireland, both Scotland and Wales have announced similar business rate holidays for retail, hospitality and leisure businesses.

FTI COMMENT:
This will be welcome news for eligible businesses, particularly given that the relief and that it will apply automatically. However, the overall value of this holiday is unlikely to be substantial for most, who will also need to determine what other measures may help with cashflow. The extension in England of the measure to estate agents, letting agencies and bingo halls will also be welcome news, although the additional restriction that they must have closed may not be helpful for some that have been able to remain open.

Deferring Income Tax payments
Self-employed individuals generally pay their income tax via “Payments on Account” – two installments based on their previous year’s tax bill, with 50% due on 31 January (prior to the relevant tax year) and the remaining 50% on 31 July. The 31 July 2020 due date for the second 2020-21 payment on account will be deferred until 31 January 2021.

The deferral is automatic and no penalties or interest for late payment will be charged in the deferral period.

FTI COMMENT:
Self-employed individuals will no doubt appreciate the automatic deferral of the July 2020 payment on account, which should help to ease cashflow issues. This move will also ensure that individuals do not have to make a payment based on their prior year’s tax liability, which may be too high for some.

It is, of course, possible that with the current downtime for many self-employed individuals, there may still be difficulties in making a tax payment in respect of last year’s tax income. Further help may be available via the extended Time to Pay scheme.

Coronavirus Job Retention Scheme and Administrations
The government has confirmed that the furlough scheme is available in respect of employees of companies in administration. However, the government has stated that “we would expect an administrator would only access the scheme if there is a reasonable likelihood of rehiring the workers”. There has been press criticism of administrators in certain cases because they have made staff redundant rather than placing those staff on furlough – this criticism may be unfair based on the government guidance.

Administrators have also sought input from the courts, notably in the Carluccio’s and Debenhams cases, in relation to the interaction between the furlough scheme and insolvency law. Administrators have 14 days at the commencement of an administration to decide which employee contracts to adopt – employees are then either retained (and their wages must be paid as a priority) or they are made redundant.

FTI COMMENT:
In the Carluccio’s case the court has confirmed that contracts are not adopted until either a furlough application is made or wages are paid to the employees. This provides the administrators with additional time to determine whether to adopt employee contracts. During this time the administrators can seek a solution for the business without the risk that employee wages (including amounts above the 80% / £2,500 caps) will be a priority expense in the administration.

The Debenhams situation differs from Carluccio’s: the staff were already furloughed prior to the administration; consents were not sought from staff to the furlough and given over 15,000 retail staff obtaining consent would be challenging. The Debenhams administrators also wished to continue to make payments to the staff (subject to the furlough scheme limits) but were concerned that should they do so that contracts would be adopted and the amounts above the furlough scheme caps would become a priority expense. The Debenhams administrators’ application to court was heard on 15 April 2020 seeking clarity on whether employee contracts would be adopted where employees remained furloughed. The judge was not prepared to give directions and an appeal is anticipated.

Administrators and their legal advisors will need to carefully assess the position of furloughed employees for each new administration case, and determine whether any court applications or other actions are required in the initial 14 day period before contracts are adopted. The position remains uncertain pending the outcome of any appeal of the Debenhams judgment.

Coronavirus Statutory Sick Pay Rebate Scheme (“CSSPRS”)
The Government will refund eligible SSP costs in respect of employees who cannot work due to coronavirus (or self-isolation) for periods of sickness up to 2 weeks, starting on or after 13 March 2020, to all employers with fewer than 250 employees (measured as at 28 February 2020).

Eligible SSP costs will include two weeks of SSP per employee who has not been able to work due to COVID-19.

Employers will need to maintain records of absences and related SSP payments.

As the scheme is being operated under the EU’s Temporary State Aid Framework, as part of their claim employers must declare that it will not result in the amount of state aid received by the employer exceeding their maximum temporary aid available. HMRC’s guidance during the claim process highlights the maximum level of state aid that a business may receive (normally €800,000) and reminds businesses that they should not claim amounts that take them above this limit, in combination with any other aid received

FTI COMMENT:
This measure should help employers to cover the cost of sick pay for staff. However, many employers offer contractual sick pay which is in excess of SSP and, therefore, may not receive full reimbursement for their costs.

A new online service for employers to make their CSSPRS claims was launched on 26 May 2020 and can be accessed here. We hope that, given the success in quick payments from HMRC with the Job Retention Scheme, payments will flow quickly to businesses who need to make a claim.

As with other claims that interact with State Aid, it can be difficult for businesses to ensure they fully comply with state aid rules and it is somewhat disappointing, therefore, that HMRC do not provide additional assistance or guidance.

An overview of other tax and fiscal measures introduced in other global jurisdictions can be found here: https://wts.com/global/insights/covid19

Stamp Duty on transfers of unlisted UK shares
HMRC Stamp Office has announced temporary processes to deal with Stamp Duty for the duration of this emergency period. While transfers of listed shares are carried out electronically, ordinarily the stock transfer forms used to transfer ownership of unlisted UK shares have to be physically presented to the Stamp Office for stamping. The emergency processes mean that the documents may be scanned and emailed (with payments of duty also being made electronically). Electronic receipts will allow company registrars to update registers of members.

New guidance can be found on Gov.UK, at Completing a Stock Transfer Form and Paying Stamp Duty. More detailed guidance will be added shortly.

Postal applications relating to stamp duty should no longer be made.

FTI COMMENT:
This is a practical and welcomed change that both enables more HMRC staff to work from home, and also removes the difficulties about sending and receiving correspondence. Further guidance will be issued in relation to group relief and claiming other exemptions. Challenges to be anticipated will be around file size limitations, and turnaround times, but HMRC are looking to work together with the taxpayers to ensure any issues are minimised.

Making Tax Digital – Delay to the Requirement for Digital Links
The Making tax Digital for VAT regulations require businesses to ensure that VAT returns are submitted digitally, and for there to be digital links between the various pieces of software that are used so that there is no manual intervention in the “digital journey” of the data from it being inputted to the submission of the VAT return.

While most business will have already signed up and submitted their first VAT returns under these new regulations, HMRC allowed a “soft-landing” period of 12 months for the digital link requirement. This meant that businesses were not required to have the digital links in place before VAT return periods starting on or after 1 April 2020 (or 1 October 2020 for some businesses where MTD was deferred by six months). Now, as a result of the Covid-19 crisis, HMRC have announced that the digital link requirement will be delayed further by twelve months to VAT return periods starting on or after 1 April 2021. This new timeline will affect all businesses, even those who only required the digital links to be effective from 1 October 2020.

FTI COMMENT:
For some SME’s, whose only piece of relevant software is their financial package, this announcement will not be relevant as they will already be fully compliant with Making Tax Digital. However, for larger businesses and those with multiple systems which may have required remediating actions and improvements, this delay will be welcomed.

Carrying Over Annual Leave
Workers (including agency workers and those on zero-hours contracts) who have not taken all of their statutory annual leave entitlement due to COVID-19 will now be able to carry up to 4 weeks of unused holiday over into the next 2 leave years.

FTI COMMENT:
The changes will help to ease the requirements on businesses to ensure that workers take their statutory amount of annual leave in the year. This will ensure that employers in key industries heavily affected by COVID-19 will remain well-staffed by allowing key workers to carry over annual leave at a time when granting annual leave could leave them short-staffed.

What is not yet clear is whether these changes force employers affected by COVID-19 to allow employees to carry over leave or rather no longer requires them to ensure that the employee takes the full 28 days leave in one year. The new regulations state that workers have the right to carry over where it is not reasonably practicable for a worker to take some, or all, of the holiday to which they are entitled to due to COVID-19. To the extent an employee cannot reasonably take leave due to commitments arising from COVID-19 then the employer will be forced to allow the employee to carry over leave. However, it remains to be seen whether if an employer provides the employee a reasonable opportunity to take leave then they cannot be forced to allow a carry-over under these changes.

No Import Duty and VAT on Vital Medical Supplies
The Chancellor has removed import duties and VAT on vital medical supplies and equipment (including protective garments and eye protection, cleaning solutions and disinfectants, diagnostic reagents and certain medical consumables) brought into the UK from non-EU countries during the COVID-19 outbreak.

The relief can be claimed immediately by:

  • State organisations, including state bodies, public bodies and other bodies governed by public law
  • Other authorised non-state bodies. Organisations can request authorisation by contacting the National Import Relief Unit (NIRU) by emailing niru@hmrc.gov.uk

These organisations can claim for relief on certain imported goods that are for distribution, free of charge, to those affected by, at risk from or involved in combating COVID-19, regardless of whether they remain the property of the organisation importing them. Additionally, medical supplies imported for donation or onward sale to the NHS are also eligible for this relief. However, only imported goods will be affected by this relief, VAT on domestic supplies will continue to be charged at the normal rate.

This measure will continue until 31 July 2020. However, if the goods cease to be used by those affected by the coronavirus HMRC must be notified of that change of use and import duties and VAT are likely to apply.

FTI COMMENT:
While relief for import duty and VAT can already apply in certain circumstances, this measure will be welcome by those organisations involved in the testing and caring for COVID-19 patients. However, further guidance on which non-state bodies can be authorised and whether there will be any restrictions have not yet been provided. Therefore is it possible that certain bodies may not be eligible for this relief. Furthermore organisations may be concerned that a retrospective clawback of the relieved duty and VAT may arise once the crisis is over. Therefore this is an area which should be kept under review.

Zero-rating of PPE
For the period from 1 May 2020 to 31 July 2020 a temporary zero-rate will be applied to the supply of Personal Protective Equipment which have been recommended for use by Public Health England. This covers disposable gloves, plastic aprons, surgical masks etc. The zero-rating will apply to all providers of such equipment and is not affected by the nature of the recipient.

FTI COMMENT:
While certain organisations have been able to benefit from the zero-rating of this equipment since the outbreak, many organisations have been excluded from this. Therefore, this measure will be very welcomed, especially for the privately owned care homes and medical service providers and hospitals who have not only been suffering with the difficulty in the procurement of these items, but also have been incurring irrecoverable VAT, resulting in increased cost.

Zero-rating of E-Publications
In the Budget 2020, the Chancellor announced a change in the VAT law, such that the zero-rate would apply to e-publications, bringing them in line with paper publications. This measure was to take effect from 1 December 2020, however, it has been announced that this measure will be brought forward to 1 May 2020.

FTI COMMENT:
This is a welcomed announcement, especially for those parents purchasing e-books to assist with home schooling or those people who have found themselves unemployed or furloughed and looking to develop new skills.

A tax case is still progressing through the courts which could affect the previous VAT treatment of e-publications and while HMRC have re-confirmed that VAT applies any supplies pre-1 May 2020, it is possible that this zero-rating may be extended to the last four years depending on the resolution of this case.

UK Government Response to COVID-19: Liquidity Support Measures

As part of the financial measures announced by the UK Government on 20 March 2020 to support UK workers and businesses through the anticipated downturn expected by COVID-19, access to emergency liquidity will be provided through a number of mechanisms, including:

  • The joint HM Treasury and Bank of England Covid-19 Corporate Financing Facility (“CCFF”) have announced they will support liquidity for larger businesses through accelerated access to low cost commercial paper.
  • The UK government backed Coronavirus Business Interruption Loan Scheme (“CBILS”) is to provide SME with UK Government guarantees support on loans of up to £5m via participating lenders.
  • The UK government backed Coronavirus Large Business Interruption Loan Scheme ("CLBILS") is to provide larger UK business with a turnover of £45m- £500m with UK government support on loans of up to £25m via commercial banks at commercial rates of interest.

In addition, companies will benefit from various other liquidity support measures including the Coronavirus Job Retention Scheme (“CJRS”) to cover up to 80% of the wages of workers not currently working but retained on payroll as well as various business rates and taxation incentives and payment deferrals.

Overview of CCFF and what we know today
The CCFF scheme has been designed to provide liquidity to larger businesses where the Bank of England will purchase directly qualifying companies’ commercial paper on behalf of HM Treasury. The latest guidance suggests:

  • Eligibility will be based on companies’ credit ratings prior to COVID-19 i.e. facility will look through the current impacts of COVID-19 on balance sheet and cash flows;
  • Facilities are expected to have a maturity of a minimum of 12 months with 6 months notice in the event of Bank of England withdrawal of support; and
  • Financial applications are to be requested directly from the Bank of England under confidential arrangements though the exact form of the application not as yet finalised.

What are the eligibility criteria for applying for CCFF?
Whilst details are as yet not finalized, the Bank of England will purchase commercial paper directly from companies making a material contribution to the UK economy and purchase on the secondary market for other large eligible institutions.

Guidance suggests that companies making a material contribution to the UK economy are UK incorporated companies with genuine interests in the UK, qualifying criteria are expected to include; companies with significant headcount, head quartered in the UK, significant UK revenue, significant UK customers and with UK operating sites.

In order to qualify the commercial paper must be GBP denominated and meet the following criteria:

  • Maturity of 1 week to 12 months if issued to the Bank of England via a dealer with option to roll subject to CCFF remaining open and ongoing eligibility;
  • Minimum short term credit rating of A-3 / P-3 / F-3 / R-3 from at least one of Standard & Poor’s, Moody’s, Fitch and DBRS Morningstar as at 1 March 2020;
  • Where no short term credit rating available long-term credit rating to be considered;
  • Issued directly into Euroclear and/ or Clearstream; and
  • If an issuer is downgraded after 1 March 2020 below the minimum credit ratings as above, the issuer will remain eligible for primary and secondary market purchase in the CCFF, subject to HM Treasury approval.

What are the costs and timelines involved?
Once accepted onto the scheme, the commercial paper for sale will need to be submitted to the Bank of England’s Sterling Dealing Desk and purchases made with a minimum nominal value of £1m with £0.1m increments with settlement on a T+2 basis.

No pricing schedule has yet been issued however purchases are expected to be made at a spread over the sterling overnight index swap curve.

Further details are included on the Bank of England’s website with the latest press release here.

Overview of the CBILS and what we know today
The CBILS scheme has been designed to provide SME businesses with access to credit during the COVID-19 outbreak via UK Government guarantee of loans, which issued under the CBILS scheme, equate to up to £5m per borrower for up to six years.

The scheme is intended to cover a wide range of funding instruments extending to term facilities, revolving facilities (overdrafts) and asset financing (including invoice financing).

The scheme is provided by the British Business Bank via participating lenders (currently c. 40 lenders, some of which may be restricted to the type of funding instruments they can support).

A key point to note is that companies will remain liable for the capital amount of any loan provided under CBILS, but the UK Government will provide guarantees to the lenders for the capital amount of the loan and first 12 months of interest.

Personal guarantees will not be required to secure borrowings below £250,000, above this amount personal guarantees will be capped at 20% of the outstanding loan with the guarantee for the remaining 80% provided by UK government.

The UK government has announced that it expects the scheme to run for an initial period of 6 months from the 23 March 2020 with no limit on the capacity of the scheme.

What are the eligibility criteria for applying for CBILS?
Companies will apply to participating lenders, where lenders consider the borrowing proposal to be sound but there to be insufficient security, the lenders will consider the company for support under CBILS.

In order to be eligible companies will need to be a UK based business activity, generate an annual turnover of no more than £45m and have a borrowing proposal that the lenders would consider viable were it not for COVID-19 and believe that the loan would enable the company (borrower) to trade out of any short to medium term difficulty.

Companies from any sector banks other than building societies, insurers, reinsurers and state funded public-sector organizations (including state-funded primary and secondary schools).

Further details including names of participating banks are published here.

Overview of the CLBILS and what we know today
The CBILS scheme has been designed to provide large UK businesses facing difficulty as a result of the COVID-19 outbreak with access to additional loans (credit) from commercial banks and launched on 20 April 2020.

From 26 May, a lender can now provide a loan up to 25% of a businesses’ turnover, subject to a maximum of £200 million. Businesses who borrow more than £50 million through the scheme will be subject to certain restrictions, including the inability to make any dividend payments (other than those that have already been declared), the inability to perform any share buybacks, and the inability to pay cash bonuses or award pay rises to senior management (subject to certain conditions).

Banks will be encouraged extend these loans to businesses facing significant cash flow difficulties and ordinarily would not have access to financing through the provision of a UK government guarantee of loans issued under the CLBILS scheme.

These guarantees extend to 80% of loans provided by commercial banks up to £25m per borrower for firms with an annual turnover of £45m to £250m and £50m per borrower for firms with an annual turnover in excess of £250m.

The scheme is intended to cover a wide range of funding instruments extending to term facilities, revolving facilities (overdrafts) and asset financing (including invoice financing) and facilities back by a guarantee under CLBILS will be at commercial rates of interest.

The scheme is provided by commercial banks and a key point to note is that companies will remain liable for the capital amount of any loan provided under CLBILS and lenders will still be expected to conduct their usual credit risks, but the UK government will provide the 80% guarantees to the lenders for the loan.

What are the eligibility criteria for applying for CLBILS?
Companies will need to be a UK based business, generate an annual turnover over £45m, self-certify that the business has been negatively impacted by COVID-19, and not received funding from the CCFF. Companies will need to have a borrowing proposal that the lenders would consider viable were it not for COVID-19 and believe that the loan would enable the company (borrower) to trade out of any short to medium term difficulty.

Companies from any sector other than banks, building societies, insurers, reinsurers and state funded public-sector organisations (including state-funded primary and secondary schools).

Companies will apply to accredited commercial lenders, details of which are yet to be announced. Further details are available here.

Start-up support: New Future Fund and Innovate Loans

The Government is offering a new unsecured convertible loan facility for amounts from £125,000 up to £5,000,000 for a maximum 36 month term. The scheme launched on 20 May and will initially be open until September 2020. To qualify a company must have raised at least £250,000 in equity investment from third party investors in the last 5 years and have a substantive presence in the UK. The Government loan funding must be matched by third party investment and be used for working capital. The interest rate will be at least 8% but higher if agreed between the company and the matched investors. The loan will convert at a discount of 20% to the next funding round provided that round is at least equal to the bridge funding. On a sale or IPO, no discount would be applied. Limited warranties and covenants would be needed and the Government’s corporate governance rights will be minimal. Further details will be published in due course.

The Government is also committing £750m of support for R&D intensive small and medium size firms. This will be administered through Innovate UK’s existing grants and loan scheme which will accelerate up to £200m of grant and loan payments for the 2,500 existing customers on an opt-in basis. An extra £550m will also be made available to increase support for existing customers and £175m of support will be offered to around 1,200 companies not currently in receipt of Innovate UK funding. The first of these Innovate UK payments will be made by mid-May.

FTI COMMENT:
A different mechanism has been needed to support early stage business in technology and life sciences with similar initiatives recently being launched in France and Germany. The package does look like it will help a number of businesses but there are many limitations which may preclude many companies from accessing the funding. One key aspect of the success of the Future Fund will be the appetite of VCs and other investors to commit funding in this short period while there is still significant economic uncertainty although matched Government funding should help follow on investment decisions for good businesses that are approaching a new funding round. The additional funding from Innovate UK will be very welcome although further details around how this will be applied are awaited.

Protection Against Eviction of Commercial Tenants
The Government announced additional protections for commercial tenants who have difficulties paying their rent due to COVID-19. Whilst all commercial tenants remain liable for rent they will now be protected from eviction if they are not able to pay.

Commercial tenants will not automatically forfeit their lease and cannot be forced out of their premises due to missed payments up to 31 December 2020.

This will apply for all commercial tenants in England, Wales, and Northern Ireland.

Many commercial tenants will already be engaged in active discussion with their landlords in the current climate, especially where they are cashflow difficulties. This new is likely to be welcomed by commercial tenants who are struggling to pay their rent, but may receive a mixed response from landlords suffering their own cashflow issues. In this regard the Government has confirmed it will actively monitor the impact on landlords’.

Suspension of Wrongful Trading Provisions
The UK business secretary has announced that the Government will temporarily suspend the wrongful trading provision of Section 214 Insolvency Act 1986, retrospectively, for 3 months from 1 March 2020. This will enable company directors to continue to operate their businesses without the threat of personal liability, should they fall into insolvency.

The suspension will allow directors of companies to continue to trade, and pay staff and suppliers even if the they believe the company could become insolvent. Without this suspension, directors facing liquidity issues would have to file for insolvency to avoid the personal liability of continuing to trade.

Existing fraudulent trading laws and the threat of director disqualification should continue to act as a deterrent against director misconduct.

FTI COMMENT:
The suspension of wrongful trading provisions should assist in allowing directors to focus on their employees and their businesses without a concern of falling foul of a technical breach of the wrongful trading provisions, given the back-drop of unprecedented uncertainty. Maintaining the fraudulent trading laws also provides some appropriate protection for creditors. The proposed measures are silent on any potential steps to not prevent creditors seeking winding-up petitions. In response to the current situation, restrictions to hostile winding-up petitions have been implemented in Germany and Australia.

Changes to the UK's Insolvency Framework
In addition to the suspension of the wrongful trading provisions, the Government have proposed changes to the UK’s Insolvency Framework to prevent businesses unable to meet debts due to COVID-19 from being forced to file for insolvency.

The changes will include:

  • a moratorium for companies giving them breathing space from creditors enforcing their debts for a period of time whilst they seek a rescue or restructure;
  • protection of their supplies to enable them to continue trading during the moratorium; and
  • a new restructuring plan, binding creditors to that plan

Whilst the proposals are not yet finalized the Government have ensured that the changes will include key safeguards for creditors and suppliers to ensure they are paid while a solution is sought.

FTI COMMENT:
There has been extensive consultation on the proposed changes to the UK’s Insolvency Framework in 2016 and 2018 and it appears that there is now an increased government emphasis on these reforms. The details of the updated proposals are yet to be confirmed, and the timing remains uncertain. During consultation, the proposed reforms were generally welcomed (subject to clarification of detail) and would add to the existing restructuring and insolvency toolkit without taking any of our existing tools off the table.

The moratorium was previously proposed as an initial 28 days and up to 3 months in duration. It will be important to understand the moratorium eligibility criteria and scope in due course. The protection of supplies was previously anticipated to be in relation essential services (e.g. IT software and connectivity) – again further clarity will be needed on how this is proposed to operate in practice. The key additional benefit of the proposed new restructuring plan is likely to be cross-class cram down which is not available in a Scheme of Arrangement.

Pending these proposals being implemented, where an insolvency process is required the existing administration process does provide for the option to achieve the rescue of the company. A rescue of the company (rather than the business) is often not achievable, however, for companies with genuine short-term challenges this could be an option in the current circumstances.

Last updated 24/09/2020 at 16.15


About FTI Consulting

FTI Consulting is an independent global business advisory firm dedicated to helping organisations manage change, mitigate risk and resolve disputes: financial, legal, operational, political & regulatory, reputational and transactional. FTI Consulting professionals, located in all major business centres throughout the world, work closely with clients to anticipate, illuminate and overcome complex business challenges and opportunities. The views expressed in any of the articles or other content hosted on this site are those of the author(s) and not necessarily the views of FTI Consulting, its management, its subsidiaries, its affiliates, or its other professionals.

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