TC09534 - [2025] UKFTT 00594 (TC)

In order to qualify for the exemption, the tuition must be in a subject ordinarily taught in a school or university. As noted in Cook at [7] (and as agreed by the parties in this case), a subject is “ordinarily” taught in a school or university if it is commonly taught in a school or university.

The CJEU in Haderer, in response to a suggestion that the ceramics and pottery courses provided by Mr Haderer were intended purely for leisure purposes warned at [24] that, in order to avoid the risk of divergences in the application of the VAT system from one member state to another, a “particularly narrow interpretation” of “school or university education” should be avoided, observing at [26] that:

“The community concept of ‘school or university education’…is not limited only to education which leads to examinations for the purpose of obtaining qualifications or which provides training for the purpose of carrying out a professional or trade activity, but includes other activities which are taught in schools or universities in order to develop pupils’ or students’ knowledge and skills, provided that those activities are not purely recreational.”

It is not necessary that the private tuition in question in some way mirrors or is analogous to the way in which the subject or activity is taught in schools or universities, nor that it is taught to a comparable standard (Cook at [17], approving observations of the Tribunal in Hocking v HMRC [2014] UKFTT 1034 (TC) at [53]).

For this purpose, “tuition” involves “the transfer of knowledge and skills between a teacher and pupils or students” (Eulitz at [32]).

Mr Marks submitted that the references to “knowledge and skills” in Haderer and Eulitz implies a requirement for the tuition to include a transfer or development of academic knowledge as well as practical skills. In support of this, Mr Marks referred to the decision of the First-tier Tribunal in Cheruvier v HMRC [2014] UKFTT 007 (TC), a case involving belly dancing. The Tribunal noted at [52] that the classroom element of an A-level dance course comprised approximately 50% of the course, concluding at [54] that Ms Cheruvier “does not teach ‘dance’ as such, but one form of dancing only, and that to the limited extent of performance.”

In our view, it cannot be inferred from the comments or conclusion of the Tribunal in Cheruvier that a transfer of academic knowledge is a requirement for the tuition in question to be capable of qualifying for the exemption. Rather, the conclusion was that Ms Cheruvier was not teaching “dance” (which it was accepted was commonly taught in schools) as a subject (given the breadth of the syllabus, the fact that only one dance was being taught and the fact that there was no classroom element to the tuition, as opposed to just performance.

It is not clear to us that, in referring to “knowledge and skills” the CJEU in Haderer intended to lay down a requirement that both knowledge and skills had to be developed in order for tuition to take place given that they were responding to a suggestion that ceramics and pottery courses were intended purely for leisure purposes (and did not therefore constitute school or university education).

Whilst the CJEU left this decision to be made by the national Court, there is no indication that they considered that such courses did not involve tuition on the basis that there was no development or transfer of academic knowledge. Had this been a requirement, it might have been expected that the CJEU would have made the point.

In any event, the development or transfer of knowledge and skills will generally go hand in hand. Subjects which are primarily knowledge based will no doubt also develop skills such as critical thinking or research techniques whilst subjects which are primarily practical (including pottery or dancing) will usually require the development or transfer of knowledge of the relevant techniques in order to improve or develop the skills in question.

Although the Upper Tribunal in Cook did not specifically deal with this point, we note that in its consideration of the activities in question (the teaching of a form of dance known as Ceroc), the Upper Tribunal rejected at [66(3)] the suggestion that the fact that the classes involved no academic content made them purely recreational. There was no suggestion that the absence of academic content meant that the classes did not, for that reason, constitute tuition.

Our conclusion therefore is that tuition need not involve any transfer of academic knowledge.

This brings us on to the question as to what features might suggest that an activity is purely recreational, and so does not fall within the concept of “school or university education” in accordance with the decision of the CJEU in Haderer referred to at paragraph [31] above.

The Upper Tribunal in Cook notes at [59] that the Advocate General in Haderer referred at [89] to “purely recreational activities of no educational value”. The Upper Tribunal in Cook however warned at [62] that: “since the ‘purely recreational’ restriction is judge-made, and not contained in the PVD, it is important to avoid interpreting it as if it were a statute.”

One important point made by the Upper Tribunal in Cook at [62(3)] is that, even if a subject, as taught in school, is not purely recreational, it is still necessary to consider whether the private tuition in question is purely recreational and that this must be answered by reference to all of the circumstances of the supply.

The Upper Tribunal in Cook, made some comments on various features which were said to lead to the conclusion that the supply in that case was purely recreational. The following points are relevant:

Mr Marks made reference to the comment from the Tribunal in Cheruvier at [50] that:

“Most forms of dance (ballroom dancing, Morris dancing, belly dancing, to identify three at random) are inherently recreational, that is, for the enjoyment and satisfaction of the participants (including their satisfaction through performance) rather than for their intellectual development in terms of expanding or deepening their knowledge.”

We should note that the comments of the Upper Tribunal in Cook as to whether the classes in that case were purely recreational were obiter, as the Upper Tribunal had already concluded that the Ceroc classes did not qualify for the exemption as Ceroc was not a subject commonly taught in schools or universities.

However, they are nonetheless persuasive and we do not think that the statement in Cheruvier that most forms of dance are inherently recreational can stand in the light of the comments made in Cook, particularly in relation to the absence of any academic content and the motivation of the participants. As the Upper Tribunal noted in Cook, it is necessary to look at all of the circumstances in determining whether the activities in question are purely recreational. This is, in our view, an objective test as it does not depend on the subjective reasons why a particular individual attends the class.

Both parties agree that, to qualify for the exemption, the private tuition does not need to cover the whole of a subject taught in schools or universities. It is enough that the private tuition covers a component of that subject. This was clearly the view of the Tribunal in Cheruvier (at [54-55]).

It is also in our view implicit in the decision of the Upper Tribunal in Cook that, if there had been evidence that Ceroc was commonly taught in schools as part of a generic dance course, this would be capable of qualifying for the exemption (see, for example at [49]). It is, however, evident that, even in this case, it is necessary to demonstrate that the particular component is commonly taught in schools or universities as part of a wider subject.

It is also apparent from Cook that activities which develop generic skills will not qualify for the exemption in the absence of evidence that the particular activity is commonly taught in schools and universities. The Upper Tribunal noted at [44] that the Ceroc syllabus identified various skills applicable to Key Stage 3 targets but concluded at [45] that:

“Organised physical activities (such as the kickboxing in Premier or the belly dancing in Cheruvier) will often develop the same skills, described at this level of abstraction, as activities which are commonly taught in school or university, but that does not tell us whether those organised physical activities are themselves subjects or activities commonly taught in school or university.”

Drawing these threads together, the key principles which we should apply can be summarised as follows: