TC09534 - [2025] UKFTT 00594 (TC)

It is accepted by HMRC that dance is commonly taught in schools. It is also accepted by Mr Chapman, on behalf of the three relevant appellants, that there is no evidence that the specific forms of dance or exercise which are the subject of the relevant classes are commonly taught in schools.

Instead, the appellants’ case is that the range of activities covered by the classes is sufficiently wide that they can be treated as analogous to the generic forms of dance and exercise commonly taught in schools rather than being a specific type or form of dance or exercise which, as accepted by the Upper Tribunal in Cook, requires evidence that that particular type of dance or exercise is commonly taught in schools.

Mr Chapman notes that, in Cook, the question identified by the Upper Tribunal at [30-32] was whether the Ceroc dancing classes in question constituted tuition in dance in a generic sense or in a specific form or style of dance. He submits however that there is a continuum between generalised dance (as taught in schools) at one end and a specific dance (such as a waltz) or a specific style or form of dance (such as Ceroc) at the other end and that there comes a point along that continuum where the range of dances taught is sufficiently wide that it should be treated in the same way as generalised dance and therefore as an activity which is commonly taught in schools.

Mr Chapman goes on to submit that categories of dance such as ballroom, Latin, classic or modern are all examples of ranges of dance which are sufficiently wide to be treated as analogous to generalised dance rather than a specific style or form of dance. In effect, what Mr Chapman is saying is that anything which is not a specific style or form of dance should be treated in the same way as generalised dance which is taught in schools. He argues that it cannot be the case that private tuition in dancing can only qualify for the exemption if it involves the teaching of all possible forms of dance.

In his skeleton argument and in his submissions, Mr Chapman accepted that it is necessary to show that the range of dances in question is taught in schools. However, he suggests that this can be inferred for example from the GCSE syllabus which refers generically to different styles of dance. He went on to suggest that it was enough that the relevant ranges of dance form part of what could be taught in schools so that a lesson which covers different forms of dance should be treated in the same way as dance which is commonly taught in schools.

By way of analogy, Mr Chapman suggested that it could be inferred that Shakespeare’s sonnets would commonly be taught in schools as part of an English syllabus and that it would not be necessary to provide specific evidence that this component of an English syllabus was commonly taught in schools.

Mr Chapman did not elaborate in his submissions as to how his arguments applied in the context of classes which constituted fitness or exercise as opposed to a range of dances. He noted however that these classes were all based on exercise in the broadest sense and therefore fell within the generic description contained in the relevant national curriculum for physical education.

In his response to Mr Chapman’s submissions, Mr Marks observed that it is perfectly possible that each dance lesson offered by the appellants might only cover one dance. As he says, there is little evidence one way or the other in relation to this.

However, based on the extracts from the Rushby and Jagers websites and the correspondence with HMRC in respect of Rushby, Jagers and Mrs Hilton, we think it is more likely than not that the lessons in question in fact covered more than one dance. Even if that is not the case, given that the classes are held out as covering a range of dances rather than a single dance, we think it would be necessary to look at any series of classes as a whole rather than focussing on a single lesson just in the same way as, no doubt, a single lesson in a school might cover only one specific aspect of the subject in question.

Having said that, Mr Marks’ key submission is that categories such as ballroom, Latin, classic or modern are just as much a form or style of dance as was Ceroc in Cook and that it is therefore necessary to provide evidence that these particular ranges of dances are commonly taught in schools rather than simply treating them in the same way as the generic dance courses which, it is accepted, are commonly taught in schools.

As in Cook, Mr Marks points out that there is no evidence that any form of pairs dancing is commonly taught in schools (this not being referred to in the relevant syllabuses/curricula provided to the Tribunal) let alone the particular forms of pairs dancing in question.

Mr Marks goes on to submit that, if a single dance does not qualify unless there is evidence that the particular dance is commonly taught in schools, there is no reason why a collection of single dances should qualify without such evidence.

As far as classes which are primarily fitness or exercise classes are concerned, Mr Marks submits that these cannot be treated as generic exercise and that, instead, it is necessary for evidence to be provided that the particular form of exercise is commonly taught in schools.

We accept, as Mr Chapman suggests, there can be seen to be a continuum in relation to both dance and exercise with, what might be called generalised dance or exercise at one end of the continuum and a specific dance or form or style of dance or exercise at the other end. Private tuition will be capable of qualifying for the exemption if it falls close enough to the generalised end of the continuum to be able to say that the activity, taken as a whole, is one which is commonly taught in schools.

However, the precise point at which a line can be drawn is difficult to define. Whether the subject or activity in which the private tuition is given is sufficiently general to be treated as dance or exercise, as commonly taught in schools, is a matter which has to be assessed in each case looking at the range of activities on offer.

In this context, as explained in Hocking at [53] and approved by the Upper Tribunal in Cook at [17], it is important to remember that the private tuition does not need to mirror the way in which the subject or activity is taught in schools or for it be analogous to or of a comparable standard to what is commonly taught in schools. However, it must still be a subject or activity which is commonly taught in schools.

It is also clear that the private tuition does not need to cover the whole range of activities comprised in a subject which is commonly taught in schools and universities. It can be just a component of that subject or activity (see for example Cheruvier at [54] and Newell v HMRC [2015] UKFTT 535(TC) at [70]).

Whilst the Upper Tribunal in Cook focussed on the question as to whether Ceroc was a separate form or style of dance rather than the sort of generalised dance which is commonly taught in schools, in our view the principle which can be derived from that decision is that private tuition in any subject which can be said to be a separate activity in its own right will only qualify for the exemption if it can be shown that the particular activity is commonly taught in schools or universities and that it is not enough that the activity shares characteristics or objectives which form part of the National Curriculum or a particular subject or syllabus.

We note for example that the Upper Tribunal refers to Ceroc as a distinct activity at [50(2)]. It also refers to specific physical activities which develop generic skills (giving the example of kickboxing which was the subject of the decision of the First-tier Tribunal in Premier Family Marshall Arts LLP v HMRC [2020] UKFTT 1 (TC) and belly dancing in Cheruvier) and again noting the requirement that there must be evidence that those activities are commonly taught in schools or universities.

Although Mr Marks did not put his submissions in quite this way, we consider that this is, in effect, the thrust of his argument that a collection of individual dances such as ballroom or Latin is not sufficiently general that it is the equivalent to dance, as that subject is taught in schools. Instead, it is necessary to show that ballroom or Latin dancing is commonly taught in schools.

In Cook, the Upper Tribunal considered in some detail whether Ceroc was a form or style of dance or was a method of teaching generalised dance, the conclusion being that it was a form or style of dance.

We do not have the evidence to determine in a similar level of detail whether a category of dance such as ballroom and Latin or classical and modern sequence dancing is, in a technical sense, a form or style of dance although we note Mr Chapman’s submission that (for example), ballroom and Latin dancing constitutes a range of different dances rather than a separate form or style of dance.

However, for this purpose, we do not consider that a form or style of dance can be given too technical a meaning. The issue was more complex in Cook given the submission that Ceroc was a particular method of teaching generalised dance. However, there is no suggestion in this case that tuition in the particular categories of dance in question constitute a specific method of teaching dance. Rather, the argument is that the collection of dances covered is sufficiently wide-ranging to be treated in the same way as generalised dance.

We cannot however accept this. The GCSE syllabus for example refers to different styles of dance including participation in dance from more than one style. If a pupil chose to participate in a waltz (and we stress that there is no evidence as to whether they might do so) and it was asked what style of dance this represents, the only answer, based on the evidence before us, would be that the style is ballroom.

Ballroom and Latin may be two different styles of dance but, even if they are, tuition in two particular styles of dance cannot in our view be said to be equivalent to the subject of dance in the more generic sense used in the National Curriculum for physical education and the syllabuses for GCSE, AS and A Level despite the fact that they encompass a wide range of different individual dances.

To use an analogy suggested by Mr Chapman in his submissions, we cannot say that walking into a ballroom and Latin dance class is the same as walking into a dance class in a school or university.

Whether or not it is right to treat ballroom and Latin dancing or classical and modern sequence dancing as a particular form or style of dance, based on the evidence available, including the extracts from the Rushby and Jagers websites, we consider that each category of dance is a separate activity in its own right. This is apparent from the fact that separate classes are offered for each category.

As such, these activities cannot be treated in the same way as the sort of general dance which is commonly taught in schools in the absence of evidence that the activity is commonly taught in schools as a component of the subject of dance or exercise.

In this context, it is not enough that the curriculum or syllabus is capable of including the particular activity in question. Given the generality of the National Curriculum in physical education and the syllabuses for GCSE, AS and A Level dance, we accept that all of the relevant classes could fall within them.

However, as is clear from Cook, even if the subject or activity to which the private tuition relates is capable of falling within a particular curriculum or course, there must still be evidence that this subject or activity is in fact commonly taught in schools or universities. In particular, we do not see how it can be inferred that a particular activity is commonly taught in schools just because the syllabus or curriculum is drawn in wide terms which is capable of covering the activity in question.

We appreciate that what we have said so far still leaves open the question as to how far along the continuum suggested by Mr Chapman it is necessary to travel before private tuition can be said to relate to the subject of dance as commonly taught in schools or universities. In our view, there is no easy answer to this question as it will depend on the facts of any given case. However, where the tuition relates to a particular dance or style or category of dances, we do not consider that such tuition can qualify unless there is evidence that the dance, category or style is commonly taught in schools.

Whilst we note Mr Chapman’s comment about studying Shakespeare’s sonnets in the context of the subject of English, we express no view on this as we do not think it is a helpful analogy given the differences between English as a subject on the one hand and subjects such as physical exercise or dance on the other.

Given our conclusions, the ballroom dancing tuition offered by Mrs Hilton cannot qualify for the private tuition exemption as ballroom dancing is a separate activity or style or category of dance where there is no evidence of it being commonly taught in schools or universities as a component of a dance course. Despite the fact that it includes a significant number of different dances, it cannot be treated in the same way as dance as that subject is commonly taught in schools.

Similarly, the ballroom and Latin classes and the classical and modern sequence dance classes offered by Jagers do not qualify for the exemption for the same reasons.

As far as Rushby is concerned, the Latin in line dance classes also do not qualify for the same reasons.

Given that kettlercise has a registered trademark and based on the other evidence as to the nature of those classes, we consider that this is a separate activity in the same way as, for example, zumba or pilates and so, again, cannot qualify for the private tuition exemption in the absence of evidence that it is commonly taught in schools or universities. In particular, it is clear from Cook that the fact that it meets generic targets contained in the National Curriculum for physical education is insufficient, on its own, for a particular form of exercise to qualify.

As we have said, we have no evidence as to exactly what is involved for Ballet Active. However the inference is that it is a particular form of exercise involving ballet moves. Again, in the absence of any evidence that this particular form of exercise is commonly taught in schools, we cannot accept that this qualifies for the private tuition exemption.

The position in relation to the summer work-out classes is more finely balanced. It might be said to be more general exercise but there is also a specific dance element, the description being “aerobic dance classes designed to teach dance skills and also to improve fitness through dance”.

As we have seen, the National Curriculum for physical education includes dance as a physical activity and so it might be said that a generic aerobic dance class might qualify as tuition in a subject commonly taught in schools. However, on balance, we do not consider that we have enough evidence as to what is involved in the summer work out classes, nor the way in which dance might be taught in schools as part of physical education to be persuaded that these classes qualify for the exemption.

Having decided that the tuition in question is not in subjects or activities which are commonly taught in schools or universities, strictly speaking, we do not need to consider whether the classes are purely recreational or, indeed, whether the classes in fact involve tuition. However, as both of these points were argued before us, we will deal with the points briefly.