ZERO-RATING – whether air purifier designed solely for use by a handicapped person – not so designed – appeal dismissed

LONDON TRIBUNAL CENTRE

BETTINE OLIVE SYMONSAppellant

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THE COMMISSIONERS OF CUSTOMS AND EXCISERespondents

Tribunal:DR JOHN F AVERY JONES CBE (Chairman)

PROF ROY G SPECTOR MD PhD FRCP FRCPath

Sitting in public in London on 2 March 2004

The Appellant did not appear and was not represented

James Maxwell-Scott, counsel instructed by the Solicitor for the Customs and Excise for the Respondents

© CROWN COPYRIGHT 2004

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DECISION

  1. Mrs B O Symons appeals against a ruling given in a letter dated 18 November 2002 that a Daikin Siesta ACEF3AV1-H photocatalytic air purifier (the air purifier) which she had purchased was not zero-rated. The Appellant, who is disabled, did not attend but asked the Tribunal to hear the appeal in her absence taking into account her written observations. The Commissioners were represented by Mr James Maxwell-Scott.
  2. The Appellant suffers from dystonia and arthritis which are exacerbated by multiple allergies to foods, inhalants and chemicals such as pesticides. She purchased the air purifier on 10 October 2002 for £311.50 inclusive of VAT at the standard rate. She contends that it should be zero-rated under Item 2(g) of Group 12 in Schedule 8 to the VAT Act 1994:

“2. The supply to a handicapped person for domestic use or his personal use…of—

(g) equipment and appliances not included in paragraphs (a) to (f) above designed solely for use by a handicapped person.”

Note (3) provides that: “‘handicapped’ means chronically sick or disabled.”

  1. It is accepted that the Appellant is disabled and that the air purifier is for domestic use. Accordingly the issue in this appeal is whether the air purifier was designed solely for use by a chronically sick or disabled person.
  2. As is clear from the words of this provision, and as decided by the Tribunal in G.D. Searle & Co Ltd v Customs and Excise Commisioners (1995) VAT Decision 5990:

“The approach of the Tribunals has been to construe the words ‘designed solely for the use of’ as involving a subjective test namely what was the intention of the designer.”

  1. This is obviously difficult for the Appellant, as a purchaser of the air purifier, to show. There is no direct evidence from the designer. A letter dated 24 April 2003 from the manufacturer to the Commissioners contains the following points:
  • “We consciously do not promote the product as a medical device being careful to ensure the buyer understands this distinction.”
  • “As far as the market is concerned anyone who wants to breath clean air is a potential customer.”

There is no suggestion in this letter that the air purifier was designed solely for use by a chronically sick or disabled person.

  1. We also consider the marketing literature for the air purifier in question which may throw some light on the purpose of the designer, and which was used by the Tribunal for this purpose in Neen Design Limited v Customs and Excise Commissioners (1994) VAT Decision 11782:
  • “Cigarette smoke. The removal of cigarette smoke benefits everyone. The Siesta has a special programme for the removal of cigarette smoke.”
  • “Siesta photocatalytic air purifier cleans the air of dust, pollution, cigarette smoke, pollen, pet hair, bacteria, odours.”

The following relate to the Siesta 3 (reference ACEF3AH), which appears to be a similar though not identical product, and accordingly we pay less attention to these.

  • “Pure clean air whatever your needs.”
  • “Ideal for homes, restaurants, offices, pubs and clubs, gyms, nursing homes, waiting rooms etc.”
  • “Clean air is a real benefit to health, comfort and well being.”
  1. The Appellant contended that the sales brochure stated that “the plasma filter was primarily developed for hospital applications…”. (We have not found this in the sales literature for the air purifier, and later she states that it relates to a ducted system, which is clearly a different product.) Secondly, that the present interpretation discriminates against those who are chronically sick in favour of wheelchair users who need special adaptations of ordinary equipment. She also makes the point that the fact that a product designed for a medical purpose is now more widely used does not alter the subjective intent of the designer.
  2. Mr Maxwell-Scott contended that one should draw the inference that the air purifier was not designed solely for use by a chronically sick or disabled person, first, because it was designed for a wide variety of general purposes, and secondly, even if it was designed solely to combat ill health such as allergies or asthma not all sufferers of these can properly be described as chronically sick or disabled.
  3. While taking account of the Appellant’s difficulties in showing that the air purifier was designed solely for use by a chronically sick or disabled person, and having every sympathy for having to pay VAT on something of medical benefit to her, we consider on the evidence before us that it was not designed solely for this purpose. While we entirely agree with the Appellant’s point that the fact that a product designed for a medical purpose is now more widely used does not alter the subjective intent of the designer, we have not found any evidence that the subjective intent of the designer is that it was designed as a medical product. The letter from the manufacturer suggests the reverse. It is significant that the manufacturer, who would know for what purpose it was designed, does not claim that the air purifier is zero-rated, which would be in its commercial interests if it considered that it qualified. The fact that the marketing literature emphasises the use for general purposes would not matter if there were evidence of design solely for use by a chronically sick or disabled person, but again that evidence is lacking.
  4. On the Appellant’s contention that the present interpretation discriminates against those who are chronically sick in favour of wheelchair users who need special adaptations of ordinary equipment, we are bound to interpret the law as it is and this seems to be more a criticism of the law.
  5. Accordingly we dismiss the appeal.
J F AVERY JONES
CHAIRMAN

LON/02/8294

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