TC09678 - [2025] UKFTT 01320 (TC)

The Appellant has not evidenced, and Mr Odong accepted that the Appellant was not regulated under any other statutory licence, approval or registration in connection with the provision of medical care.

Any registration as an employment business under the Employment Agencies Act 1973 is not relevant to the issues we must determine as such businesses are expressly excluded from regulation, in the Relevant Period, under the Health and Social Care Act 2008 by virtue of Schedule 1 paragraphs 1 and 13.

We infer that the Appellant worked under a system of framework and master vendor agreements with NHS Trusts including those identified in the documents summarised at paragraphs 17(6) - 17(8) but we cannot determine the terms on which workers were provided and thereby the obligations imposed on the Appellant by the NHS. However, we consider that it is reasonable to infer that the obligations imposed were similar to those set out in the BUPA contract summarised at 17(13).

Contracts with such state regulated institutions do not represent licencing, authorisation or registration pursuant to an Act of Parliament.

The Neuven audit report for 2012 indicates that, certainly up until that date, the Appellant used Delta’s infrastructure for the operation of its business. It is at least implicit, and we accept that such infrastructure included access to an occupational health contract.

It is reasonably apparent that Mr Odong had little regard to the corporate separation between Delta and the Appellant. Documents said to pertain to and branded as those relating to the Appellant frequently referred to Delta indicating that Delta’s documents were repurposed for the Appellant. We do not believe that this repurposing was with an intention to mislead either the Tribunal or clients it is more likely that it was sloppy practice.

Whilst we accept that HMRC’s concern that documents referring to the Nursing Agencies Act, CRB and CQC etc (including the Brochure, Flowchart and UMBT) did not relate to the Relevant Period, on balance, we consider that such references are more likely to be a further manifestation of sloppy practice and that documents correct at the point of drafting continued in use in the Relevant Period despite no longer containing the correct references to current legislation, regulators etc.

The Appellant was audited by Neuven in 2010 and 2012. The latter audit report revealed failings in the Appellant’s processes and record keeping. However, it is at least implicit from the 2012 audit outcomes and actions that the Appellant was expected/required pursuant to the terms on which the audit was carried out, to ensure, on its own behalf, that requirements as to registration, qualifications, references etc were met, and that induction training, occupational health assessments (including fit to work vaccinations) and annual appraisals had been provided by the Appellant to all workers.

We consider it most unlikely that such obligations were removed from contracts relating to the Relevant Period despite not having been provided with copies of such contracts. We consider that conclusion to be consistent with the reference in documents relation to time before the Relevant Period and to booking procedures applying during the Relevant Period (i.e. the use of e-tips). That the Appellant undertook such activities is also apparent from the Brochure and Flowchart. Mr Odong was also adamant in his evidence that the role of the Appellant under such contracts required it to verify the registration, qualifications and references of the workers, to provide induction and annual mandatory training, undertake appraisals and occupational health and fit to work assessments. We are inclined to accept that the workers placed by the Appellant were verified, assessed and trained prior to the broad satisfaction of the Appellant’s clients and those client’s auditors during the Relevant Period.

On the basis that the Appellant was unable to demonstrate that it employed nurses or other practitioners or otherwise owned any infrastructure to carry out the verification, assessment and appraisals we consider it more likely than not that it was Delta that provided these services on behalf of the Appellant but not though any formal contracting.

Although we have accepted that the Appellant was subjected to the same requirements placed on its clients pursuant to their CQC registration and regulation the indirect imposition of these requirements does not represent the licencing, approval or regulation of the Appellant pursuant to an Act of Parliament.

We do not accept Mr Odong’s evidence that it was his staff who specified the roles to be filled by the workers the Appellant placed. Not only is such a conclusion highly improbably it is inconsistent with the role descriptions provided by the NHS. We find that the Appellant’s clients will have identified resource gaps for medical staff of a specific grade and certain experience; the Appellant then identified the workers contracted to it which met the criteria specified. These workers were then offered to the client for placement. Given the implausibility of his evidence in this regard, and absent any documentary evidence (from any period) that would assist we have no evidence on which to determine how this matching process took place and whether it directly involved medical practitioners contracted to or employed by either the Appellant or Delta.

As indicated in the hearing we take judicial notice that for many years, including in the Relevant Period, the NHS has been routinely dependant on agency nurses to ensure that medical care is safely provided in hospitals.