TC09640 - [2025] UKFTT 01114 (TC)

We have already dealt with HMRC’s contention that even if Item 5 applies to the provision of a deputy and not to a deputising service that it should be limited to the provision of a deputy for a GP. The GMC holds a register within which medical practitioners may be identified as GPs, specialists or simply registered generally. The legislation adopted the widest definition of the register. In contrast, the NHSGMPSR refers to practitioners on the medical list within the GMC register for general practitioners. We consider that to have been a plain legislative choice also available to Parliament when enacting the Order which was not adopted. As such there is nothing to limit the application of Item 5 to GPs.

Concerning the further alternative that a deputy must be provided for a named and identifiable individual i.e. only for an employee in post but unable to perform their duties and not temporary cover for a vacant post. We cannot see any sensible basis to apply that interpretation which fits within a scheme of self-assessed taxation where the supplier needs to determine the liability of the supply it makes and account to HMRC for VAT on the supply. Such an interpretation would render the scope of the exemption absurdly unworkable. The deputy must be “for a” registered medical practitioner. Whilst we accept that “a” might connote an identified individual registered medical practitioner we consider it more consistent with the language of the provision that it connote an identified post requiring a registered medical practitioner to perform it.

Item 5 provides no mechanism for communication by the Appellant to the supplier whether the post to be filled is a vacant post because of the temporary absence of a returning employee or in consequence of the post being vacant, or a change from the former to the latter. A supplier is therefore entitled to expect certainty in the application of the tax. Pursuant to the contracts they enter a supplier will be able to identify that they are providing a member of staff in order that the staff so provided is under the direction of the recipient in a situation in which the individual will provide services which require them to be a registered medical practitioner. Such a supply is, in our view, properly exempted under Item 5 whatever the circumstances giving rise to the vacancy in the post. That interpretation provides the necessary certainty which is to be expected of tax legislation (whether at an EU or domestic level).

We therefore reject both of HMRC’s alternative positions.