On the basis that the provision of a vehicle is a defined cost, and assuming a fuel card is also classed as such, can the PM argue that private mileage should be deducted?
In direct answer to your question, it would depend upon what the Contractor pays for and whether private mileage is reimbused or not by the Contractor. If it is then this would be classed as a P11D benefit to the employee, but the cost would be included in any calculation.
The key is at paragraph 11 of the SCC which states;
’ … amounts paid by the Contractor … according to the time worked on the contract.’ (NEC4)
How much does it cost for the Contractor to employ that person, for the time thay are working on the contract, as defined by section 1 of the Schedule of Cost Components?
To be strictly correct you would look at each individual and their pattern of behaviour to determine what is realistic. That is very time consuming, however, and also subject to change over time as personal circumstances alter. Consequently it would be more sensible to apply a ‘general allowance’ based on a sensible average to calculate the number of miles per year for business use, where private use is not reimbursed.
This is the same principle that the daily or hourly rate is based upon as you apply an adjusted rate (taking account of an assumed assessment of non-working time) to the time worked on the contract.
The key issue we have is when a contractors member of staff has a fully expensed company car as part of their employment package. As such they are reimbursed for all their private mileage, although it is of course a taxable benefit. So is this fuel cost a defined cost that can be charged? Previously agreed staff rates have included an allowance for fuel (both business & Private) but in this case the fuel costs are claimed as actual costs incurred on a fuel card. The debate is whether the client should pay for that portion of the fuel bill that covers private mileage. Of course it can be argued that this benefit could be replaced by a salary increase to cover this which the client would then have to pay !!!
I would say that fuel for private mileage should be included. In some ways it is no different, in principle, to any of the items which are specifically stated to be ‘for dependants’ or where a health insurance policy applies to the whole family not just the employee. The company is paying for something that is not directly related to a person’s job, but it is still part of the ‘cost to employ’ that person. Also taxation rules don’t determine whether something is included or not, rather the headings under the SCC. There is no ‘fair and reasonable’ approach here, but what is required is a ‘clinical’ assessment, in the same manner that Disallowed Cost should be assessed (that is not what YOU decide but what the contract determines).
Note that NEC4 now states ‘in accordance with their employment contract’ at s13. If payment is made by the company as a consequence of employment and it fits one of the SCC component categories then I suggest that it should be included.