*Update* The Upper Tribunal has upheld the decision of the FTT in the Lilias Graham Trust case

This commentary focuses on one of the defining planks of the ‘welfare’ exemption which applies (amongst others) to charities.  The relevant provision relates to the ‘care or protection’ of children or young persons.  The review is prompted by the Tribunal decision in Lilias Graham Trust (TC07346).  Whereas the facts will be special to that charity (which has an unusual activity) the case makes some points which have a wider resonance.

The first of these is to congratulate the charity and its advisers for a decision they took which led to the case.  The charity had already received a ruling from HMRC on the treatment of their activities, but this ruling was very old.  It was on the cusp of incurring significant input tax, so the charity decided to ensure that HMRC continued to stand by the guidance.  This was very wise.  Attempting to use old rulings as a defence is a risky strategy.  In this case, certain aspects of its activities had changed, which is almost inevitable.  If (as one assumes) the cost of a mistake was intolerable, it was appropriate to ensure that there was no room for dispute.  I can imagine others thinking that this was akin to asking for an adverse outcome, but sometimes one must have certainty, and I feel this was justified.

The situation seems counterintuitive in that the charity had a clear preference for its services to be taxable.  But this was to allow input tax recovery, which is what they needed to check before committing to a large capital spend.  And, it appears that their services were wholly supplied to local authorities, which can reclaim VAT.  This case therefore slots neatly into HMRC’s trend in attacking charities seeking to make taxable supplies to local authorities.  It also reinforces the image of an HMRC that seeks to erect barriers to local authorities seeking services from charities rather than providing them from internal resources.

This was the reason that the charity appealed the revised ruling from HMRC.

The question was whether its services were exempt as the ‘care or protection’ of children (or services connected to those).  The charity said that they did not care for or protect children, because the central plank of the service was to monitor parenting skills of parents that the local authority (or similar agency) had identified as potentially problematic.  Their approach is immersive and intensive.  They take both the parents and children to a centre to interact with them and make observations.  As an inevitable aspect of this, there are times where they steer the parents in a better direction.  But the essence of the service is ‘diagnostic’ in that a report is written to the funder telling them about the parenting skills of the subject families, and about the family relationship dynamic, and how these could be improved.

The charity relied on an old tribunal decision concerning assessment for child adoption: Parents and Children Together (‘PACT’) which held that a service of assessment did not involve care of a child.  However, there were critical differences.  In PACT there were no actual children involved at the time of the assessment, since it predated the adoption of any child.  And all putative parents were assessed, whereas in the case of Lilias Graham Trust, only known cases of potential difficulty ever came forward for assessment.  These may appear to be small differences, but one can see that they are potentially critical.

Nonetheless, the argument continued that assessment was not ‘care’.  The problem with that was that the service did not need to be ‘care’, but needed only to be ‘connected’ with ‘protection’.  That is a more difficult word to define.  The tribunal felt that it must be given a broader meaning than physical protection services (would add nothing to the definition of ‘care’).  They could include a service the intended outcome of which would protect a specific child or specific children.  This service, the tribunal decided, achieved that objective and therefore provided ‘welfare’.

So, the service is exempt, subject to the charity’s appeal.

But in the tradition of Pyrrhic victories, if the charity set up a non-charitable company to provide these services, and as these need not be regulated since there is no actual care, might that company make taxable supplies?  If so, might the charity tax a rent payable by that company for use of the premises on which the input tax had been incurred, and might the charity achieve input tax recovery on the capital project that way?  We don’t know.  But in any event the outcome of the case has several instructive strands to it.

Graham Elliott is the Charity Tax Group’s Technical Advisor.