20379

VALUE ADDED TAX —drugs administered to patients by nurses in patients’ homes — training by nurses of patients enabling patients to self-administer drugs — whether zero-rated supplies of drugs or exempt supplies of medical care — VAT Directive art 132(1)(b), (c) — VATA Sch 8, Group 12, Sch 9 Group 7 — Beynon and College of Estate Management considered — found to be supplies of drugs — appeal allowed

MANCHESTER TRIBUNAL CENTRE

HEALTHCARE AT HOME LTDAppellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY’S REVENUE AND CUSTOMSRespondents

Tribunal: Colin Bishopp (Chairman)

Sitting in public in Birmingham on 17 and 18 September 2007

David Milne QC and James Rivett, counsel, instructed by Ashurst for the Appellant

Valentina Sloane, counsel, instructed by the Solicitor and General Counsel for HM Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2007

DECISION

  1. The Appellant, Healthcare at Home Limited, makes a number of different kinds of supply of medical services. It does so pursuant to contracts into which it has entered with the NHS, private medical insurers and some pharmaceutical manufacturers. Only one of the supplies made by the Appellant is in issue in this appeal, namely the administration by nurses of drugs prescribed for patients, to those patients in their own homes. The Appellant contends that it is making zero-rated supplies of drugs; the Respondents that it is making exempt supplies of medical services. They made a ruling reflecting their view and communicated it to the Appellant by means of a letter dated 28 June 2006, modified by a further letter of 23 August 2006, and it is against that ruling that the Appellant now appeals. The ruling represented a change of approach, consequent upon the Commissioners’ interpretation of the judgment of the House of Lords in Dr Beynon and Partners v Commissioners of Customs and Excise [2005] STC 55, and it affects only the period beginning on the date of the first letter. The Appellant says that, following a reorganisation of its operations on 6 March 2007, the ruling no longer applies to it. The Commissioners do not make that concession, but I am not asked to decide that issue, nor to determine to what extent the ruling, if it is correct, affects the Appellant’s tax liabilities. Although the dispute focuses on the supplies the Appellant makes, in reality the appeal has been brought because of the effect of the ruling on the extent to which the Appellant is able to recover the input tax it incurs in the course of its business.
  2. The precise scope of the Appellant’s services differs depending on the nature of the drug and the capabilities of the patient. In all cases the Appellant supplies the drug, but the Commissioners seek to divide the manner in which it does so into four categories. In the first, the Appellant does no more than deliver drugs already prescribed to a patient, who then takes the drug, without nursing intervention, in accordance with his medical practitioner’s instructions. In the second, a nurse employed by the Appellant attends at the patient’s home in order to administer the drug on every occasion; the nurse may take the drug with her, or it may already have been delivered to the patient’s home, but no distinction is drawn between those two possibilities. In the third category the nurse attends, typically on one or two occasions, at the patient’s home, in order to instruct the patient in the self-administration of the drug. The fourth category encompasses supplies of drugs made to a patient after he or she has been successfully instructed in self-administration. The Commissioners accept that supplies in the first and fourth categories are properly zero-rated, but maintain that those in the second and third are exempt—in effect, their case is that when a nurse attends, the supply is exempt. Although the Appellant did not approach the categorisation of the supplies in quite the same way, it did agree that the Commissioners’ analysis correctly identifies the issue I must decide.
  3. The parties are agreed that the disputed supplies are to be treated as composite, that is to say are to be considered, in the light of the judgment of the European Court of Justice in Card Protection Plan Ltd v Commissioners of Customs and Excise (Case C-349/96) [1999] STC 270, as a single supply: it was not suggested that the two components were to be treated separately for tax purposes, as in Talacre Beach Caravan Sales Ltd v Commissioners of Customs and Excise (Case C-251/05) [2006] STC 1671. The Court’s view in Card Protection Plan is encapsulated in paragraph 30 of its judgment:

“There is a single supply in particular in cases where one or more elements are to be regarded as constituting the principal service, whilst one or more elements are to be regarded, by contrast, as ancillary services which share the tax treatment of the principal service. A service must be regarded as ancillary to a principal service if it does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied”.

  1. The supply of drugs to a patient is zero-rated by virtue of section 30 of, and Group 12 of Schedule 8 to, the Value Added Tax Act 1994. Item 1 of Group 12, as it currently reads, extends zero-rating to:

“The supply of any qualifying goods dispensed to an individual for his personal use where the dispensing is by a person registered in the Register of Pharmacists maintained under the Pharmacists and Pharmacy Technicians Order 2007 or in the register of pharmaceutical chemists kept under the Pharmacy (Northern Ireland) Order 1976, on the prescription of a person registered in the register of medical practitioners, the register of medical practitioners with limited registration or the dentists’ register.”

  1. It is common ground that drugs supplied by the Appellant are “qualifying goods” as they are defined by Note (2A) to Group 12, and that it is the Appellant, which has its own pharmacists, which undertakes the dispensing of drugs which have been prescribed by registered medical practitioners (in some cases the drugs are dispensed by hospital pharmacies and collected by the nurse before administration to the patient but this difference does not affect the issue before me). Thus, as the Commissioners accept, the Appellant’s supplies of drugs alone are zero-rated.
  2. Supplies of goods may be zero-rated by reason, not of any requirement of European law, but of a derogation: see the Sixth VAT Directive (77/388/EEC) article 28(2) and Directive 2006/112, articles 109 and 110. Medical care is, by contrast, exempt from VAT by virtue of the mandatory provisions of what was formerly article 13A(1) of the Sixth Directive, since replaced by article 132(1) of Directive 2006/112. There are minor differences between the two provisions, of no consequence for present purposes. The recent directive puts the requirement in these terms:

“Member States shall exempt the following transactions:

(a)[immaterial]

(b)hospital and medical care and closely related activities undertaken by bodies governed by public law or, under social conditions comparable with those applicable to bodies governed by public law, by hospitals, centres for medical treatment or diagnosis and other duly recognised establishments of a similar nature;

(c)the provision of medical care in the exercise of the medical and paramedical professions as defined by the Member State concerned …”

  1. In the United Kingdom, those requirements are implemented by section 31 of, and Group 7 of Schedule 9 to, the 1994 Act. During the relevant period, Item 1 of that Group exempted:

“The supply of services by a person registered or enrolled in any of the following—

(a)the register of medical practitioners or the register of medical practitioners with limited registration;

…

(d)the register of qualified nurses and midwives maintained under article 5 of the Nursing and Midwifery Order 2001.”

  1. I heard the oral evidence of two witnesses, Ruth Poole who is the managing director of the Appellant’s Clinical Care Division, and Jonathan Cohen, director of its PharmaService Division. I had also copies of some of the Appellant’s contracts and other documentary evidence. Mr Cohen’s evidence related to the Appellant’s drug procurement arrangements and to the rationale behind its agreements with the NHS, medical insurers and pharmaceutical companies pursuant to which patients received drug therapy in their own homes. I mean no disrespect to him when I say that the only point of significance to emerge from his evidence was that, in many if not most cases, the cost of the drug exceeds the cost of employing a nurse to administer it.
  2. Mrs Poole offered a good deal of detail about the manner in which the Appellant makes the relevant supplies. Patients who have received a diagnosis and prescription in hospital—whether NHS or private—are offered the choice of receiving their treatment in hospital, usually as day patients, or at home. The Appellant is one of several companies which provide the service of delivery and administration of drugs in patients’ homes, and if the hospital concerned has a contract with the Appellant, the patient is allocated to it for the purpose of providing the service. In some cases the pharmaceutical company meets the cost of any necessary nursing input, though the hospital or the insurer pays for the drugs. Drugs which a patient can administer without significant instruction, such as tablets and liquid oral medicine, may be delivered by the Appellant to his home, but the Appellant has no further involvement in the treatment. At the other extreme, it may be necessary for a nurse to administer every dose of the drug because of the nature of the drug. That would almost invariably be the case if the drug was cytotoxic, as some chemotherapy drugs are, since merely handling the drug presents a risk to the handler, and correct administration is of great importance. In between are drugs which a patient, after some instruction, can self-administer (or which his carer, also after instruction, can administer), by subcutaneous or intravenous injection, or by means of a cannula. In those cases the instruction is sometimes given by the hospital, and in others by the Appellant’s nurses. Following successful instruction in injection or the insertion and use of a cannula, the Appellant delivers the drugs to the patient but has no continuing nursing involvement, save for occasional checks to ensure that the self-administration remains effective, although it also remains available to provide advice to patients, and to stand in if a patient’s carer has been administering the drug and has become unavailable. The patients are all kept under review by the hospital which had initiated their treatment.
  3. Mrs Poole agreed that, where the nurses administered the drugs, their presence was of critical importance; without it, the patient would be unable to take the drug at all at home and would have to attend hospital. She also accepted that administration of drugs was not a simple mechanical process, but one which required the exercise of skill on the nurse’s part, in such matters as the handling of cytotoxic drugs, the selection of a suitable vein for injection, the monitoring of the patient’s reaction to the drug and the taking of corrective action should it be necessary; indeed, the nurses employed by the Appellant have received special training in the administration of such drugs. However, she said, the nurse’s task was limited to the administration of the drug or training—general nursing was not included in the scope of the Appellant’s service. Patients varied in the time needed to train them fully, some requiring only one session and others two. A few required more; typically the Appellant’s contracts allowed for a maximum of four sessions before the offer of treatment at home was withdrawn and the patient was instead required to be treated in hospital. It was, therefore, expected that the Appellant’s nursing involvement would be relatively short-lived, while it might continue to supply the drugs for some considerable time. Mrs Poole told me that although some patients received drug therapy for a finite period—a chemotherapy course would last for, typically, 13 months—others received treatment for years, even for life.
  4. For the Appellant, David Milne QC argued that the approach to be followed is that set out in the speech of Lord Hoffman (with which the other members of the House of Lords agreed) in Beynon, where he was required to consider the tax treatment of supplies made by a general practitioner who, in addition to diagnosis and prescription, also dispensed and administered the drug he had prescribed. In this tribunal (2001, Decision 17275) it was determined that the doctor made a single, exempt, supply of medical services, a view endorsed by the High Court ([2002] STC 699) but rejected by the Court of Appeal ([2003] STC 169), which concluded that consultation, diagnosis and prescription constituted one exempt supply of services, and the dispensing and administration of the drug another, zero-rated, supply of goods. At [31] and [32] Lord Hoffman said:

“[31]… this approach seems to me to involve the kind of artificial dissection of the transaction which the Court of Justice warned against in its judgment in the Card Protection case [1999] STC 270, [1999] ECR I-973, para 29. In my opinion the level of generality which corresponds with social and economic reality is to regard the transaction as the patient's visit to the doctor for treatment and not to split it into smaller units. If one takes this view, then in my opinion the correct classification is that which the NHS has always taken of the personal administration of drugs to … patients, namely that there is a single supply of services.

[32]It is true that in some cases, the nature of the drug which is administered will assume a greater importance than in other cases. It is easy to think of examples in which the element of skill on the part of the doctor is at a minimum and what matters is that the patient should receive, for example, a particular injection for travel to a foreign country. But in applying the classifications required by VAT, it is essential for practical reasons to have a rule which applies to all transactions of a certain kind. For example, in the case of the restaurant meals for which the Court of Justice laid down a general rule in Faaborg-Gelting Linien A/S v Finanzamt Flensburg (Case C-231/94) [1996] STC 774, [1996] ECR I-2395, one could imagine cases in which the services provided by the restaurant were insignificant compared with the value of the food or wine. It would however be administratively impossible to deal with each meal on a case-by-case basis. It is essential to have a rule which applies across the board.”

  1. In Faaborg-Gelting the Court had been required to consider whether the supply of a restaurant meal was properly classified as a supply of services, or of goods. At paragraphs 13 and 14 of its judgment it said:

“13. The supply of prepared food and drink for immediate consumption is the outcome of a series of services ranging from the cooking of the food to its physical service in a receptacle, whilst at the same time an infrastructure is placed at the customer’s disposal, including a dining room with appurtenances (cloak rooms, etc), furniture and crockery. People, whose occupation consists in carrying out restaurant transactions, will have to perform such tasks as laying the table, advising the customer and explaining the food and drink on the menu to him, serving at table and clearing the table after the food has been eaten.

14. Consequently, restaurant transactions are characterised by a cluster of features and acts, of which the provision of food is only one component and in which services largely predominate. They must therefore be regarded as supplies of services within the meaning of art6(1) of the Sixth Directive. The situation is different, however, where the transaction relates to ‘take-away’ food and is not coupled with services designed to enhance consumption on the spot in an appropriate setting.”

  1. Thus one should be careful not to attach too much importance to the “principal” and “ancillary” test suggested by the Court in the extract from its judgment in the Card Protection case which I have set out. One had instead to have regard to “the level of generality which corresponds with social and economic reality”, to use Lord Hoffman’s words even if, as in Faaborg-Gelting, that might lead to what at first seemed a surprising result. Here, even though the input of the nurse might be of critical importance, the economic reality was that the patient was receiving a supply of drugs. The question to be asked was, what did the typical patient seek to obtain from the Appellant? That subjective test could be derived from the observations of Lord Slynn when he was required to consider the judgment of the European Court on the return of Card Protection Plan to the House of Lords. The question in that case was whether a “bundle of supplies”, including insurance protecting the cardholder in the event of the theft or loss of his credit cards, a card registration service and some other benefits, was to be treated as a supply of insurance, with the consequence that the whole supply was to be taxed as such as supply, or as a set of discrete supplies each with its own tax treatment. At [2001] STC 174, at [25], he said

“If one asks what is the essential feature of the scheme or its dominant purpose, perhaps why objectively people are likely to want to join it, I have no doubt it is to obtain a provision of insurance cover against loss arising from the misuse of credit cards or other documents. That is why CPP is obliged to, and does, arrange, through brokers, with an insurance company like Continental for that cover to be available.”