TC09534 - [2025] UKFTT 00594 (TC)

The evidence available to the Tribunal consisted of a bundle of documents and correspondence. The bundle contains five witness statements, three on behalf of the appellants and two on behalf of HMRC. In addition, we had Mr Rashleigh’s second witness statement (mentioned above) and the documents exhibited to that witness statement but excluding the printouts from the Twinkl resources which were not admitted as part of the evidence.

All of the witness statements were accepted by each of the parties and no party wished to cross-examine the witness of another party. Neither party referred to the evidence contained in the witness statements themselves either in their skeleton arguments or their submissions although reference was made to a number of the documents exhibited to the witness statements provided on behalf of the appellants by Mr Rashleigh, David Rushby and Peter Taylor, the Head Teacher of a primary school in Cheshire.

One observation made by Mr Marks is that there is relatively limited evidence as to exactly what was taught in the classes offered by Rushby, Jagers and Mrs Hilton. As we shall see, this is not surprising given the way in which Mr Chapman put his submissions on behalf of the appellants as to whether the activities in question were commonly taught in schools and universities. It has however made it more difficult for us to reach a firm conclusion as to the extent to which some of the classes involved tuition or were purely recreational. We deal with these aspects separately below.

Having said this, the relevant background facts are not in dispute and we set out the factual background below. The dispute in reality is how the relevant legal principles should be applied in the circumstances in question.

Dance, as a subject, is commonly taught in schools and universities. Mr Rashleigh has produced documents (which we have no reason to doubt and which were not challenged) which showed that 66% of universities in the UK offer courses in dance or other subjects which involve dance and that over 10,000 students took a GCSE in dance in 2016.

We have not been provided with any evidence as to the nature of the university courses which involve dance. The parties, instead, focused on the teaching of dance in schools.

As far as early years are concerned, the physical education section of the national curriculum shows that, at key stage 1, pupils should be taught to “perform dances using simple movement patterns”. At key stage 2 they should be taught to “perform dances using a range of movement patterns”. Key stage 3 requires pupils to be taught to “perform dances using advanced dance techniques in a range of dance styles and forms”. Key stage 4 refers to pupils being taught “to develop their technique and improve their performance in other competitive sports (for example, athletics and gymnastics) or other physical activities (for example, dance)”.

The dance GCSE is wide-ranging, including choreography, performance and appreciation of dance as an art form. It is described as a “holistic engagement with dance”. As far as performing is concerned, students must “participate in and appreciate dance from more than one style” including the performance of “one or more dances which requires an appropriate level of sophistication, complexity and challenge”.

The AS and A level requirements are similar although, as would be expected, more advanced. They again involve performance, choreography and appreciation of dance as an art form, in this case to be achieved through “exploring and making connections between theory and practice, critically engaging in the analysis of own work and that of professional repertoire, leading to a holistic approach to the study of the subject”.

This includes technical and performance skills which, in the case of the AS level involves “a presentation through both a duet/trio which investigates characteristics of style within a genre and a solo performance of own choreography”. For A level, the pupil is required to perform “a solo based on a specific practitioner demonstrating embodied knowledge of the practitioner’s movement/choreographic style” as well as a performance “as part of an ensemble, through a quartet performance”.

We now need to look at the facts relevant to each of the individual appellants.