Charities sometimes provide payroll services to persons with disabilities, to allow these people to employ, and remunerate, a carer.  The provision of care services by a charity would be exempt from VAT.  Where the only service provided is of running the payroll service, the charity will argue that that service is exempt, owing to the special needs of the service recipient and that person’s incapacity to deal with the arrangements for employing the carer.

Following an unsatisfactory piece of litigation, HMRC has issued R&C Brief 16(2020) which confirms their view that these services are taxable, and not exempt.  The litigation was unsatisfactory in the sense that the appellant, Cheshire Centre for Independent Living, won its case at the First tier Tribunal, but withdrew from the appeal to the Upper Tribunal.  Since it withdrew, the Tribunal had no choice but the allow HMRC’s appeal against the First tier decision, and the result is that this decision is regarded as null and void.  A further complication was that the First tier Tribunal inferred that HMRC accepted that the service was ancillary to an exempt service of care, whereas the fact was that the service of the carer was provided as an employee and therefore not a service (for VAT purposes) at all.  This arcane distinction was thus being advanced by HMRC, on its appeal, and was the apparent reason that the charity decided not to contest the appeal.

The Brief invites those charities that have appeals stood behind this litigation to consider whether to pursue their own litigation, or to now give up the fight.

The arguments are both technical and arcane in the extreme.  The concept that a payroll service for such persons is analogous to running of a simple payroll for convenience’ sake is far-fetched.  However, it is clearly more an enabling service than one of direct care, so the issue appears to be whether it is sufficiently integral and necessary to the needs of the user to create a form of care notwithstanding this.  All the Brief says is that such a service must be “‘logically part of, or an indispensable stage’ in the provision of the general care and domestic help provided to the disabled person.”  It is difficult to see how provision of a payment service for a person who lacks the ability to carry out that service is not an “indispensable stage” in that domestic help and care.

However, it now falls to other charities to determine whether to take this forward in the face of HMRC’s desire to interpret the rules in the most taxing way they can.