TC09678 - [2025] UKFTT 01320 (TC)

Mr Odong is a director of the Appellant. He provided a witness statement on 10 December 2024 after the amended GoA had been served. Despite this, the witness statement provides evidence at some length addressing matters which had been the subject of the unsuccessful judicial review litigation and/or conceded for the purposes of this appeal. We do not set out this evidence as it is irrelevant to the issues we must determine.

Oral evidence including cross examination took the substantial part of a day of the hearing. Mr Odong’s evidence was extremely repetitive, and he struggled to focus on the issues we need to determine repeatedly referencing both the provisions of the NAC and HMRC guidance and that the workers provided were involved in the provision of medical care by the Appellant’s clients to patients in the hospitals and state regulated institutions to which they were assigned (the former being irrelevant and the latter accepted by HMRC).

His evidence explained, by reference to the document outlined and addressed at paragraph 17(5) above, that the Appellant’s business comprehensively vetted, screened and trained all workers before accepting them onto its books and throughout the period they were contracted to the Appellant. He claimed that the Appellant employed/contracted the services of nurses at more senior grade bandings to interview staff as it was a requirement that interviews needed to be done by registered medical professionals of a more senior grade to the worker. Qualified occupational health practitioners were claimed to be employed by the Appellant to carry out the screening of workers to ensure that such workers were fit to work on each assignment. It was also claimed that the Appellant provided the workers with their annual mandatory training to ensure competence for the assignment. It was said that each allocation of a worker to an assignment was undertaken by a medically qualified practitioner within the Appellant’s management to ensure suitability in meeting client need.

Annual appraisals were said to be carried out as required under client contracts.

Mr Odong said that the Appellant was required to maintain complete records of all vetting, screening and training for each of the workers which was then subject to audit by the Appellant’s clients (as demonstrated by the Neuven audit reports referred to at paragraphs 17(1) and 17(3) above). He also explained that other firms were subcontracted by clients to undertake these audits.

Mr Odong accepted in cross examination that there was no documentary evidence within the bundle which specifically demonstrated how the vetting, screening, training and appraisals which he said was provided by the Appellant was performed and by whom. He said it could be demonstrated through the operations manual and other documents which could have been produced. As to the application to admit these documents at this stage in the proceedings see paragraphs 13 to 15 above.

The evidence was unclear as to the arrangements for the assignment of non-medically qualified workers such as care assistants. Mr Odong claimed that all care assistants provided by the Appellant were under the supervision of medically qualified workers also provided by the Appellant, in effect that qualified and unqualified workers were provided as a package. No specific information was provided in this regard it was merely general assertion.

It was stated in Mr Odong’s witness statement that post 2010 the Appellant was regulated and licensed by the Purchasing Agency of NHS Suppliers and other bodies. However, in evidence and cross examination that position was refined. Mr Odong accepted that the Appellant was no longer directly licenced, approved or registered under statute with any regulatory body. In 2010 nursing agencies were no longer required to be registered with the CQC and sole responsibility for meeting CQC requirements fell on the hospitals and other state regulated institutions providing the care to patients. However, he explained that the Appellant was nevertheless indirectly subject to the same regulatory regime because the hospital or state regulated institution could only comply, so far as the provision of care was through agency workers provided by the Appellant, by imposing obligations to vet, screen, train and appraise on the Appellant. Those obligations were audited by the Appellant’s clients and were, therefore complied with.