[2025] UKUT 061 (AAC)

For the sake of completeness, although neither party really grappled with it in any detail in their submissions, I shall address the fourth condition in regulation 4. That condition requires that the work referred to in the second condition “is done for payment or in expectation of payment”.

This requirement presents the claimant with a further difficulty because, as the claimant accepts, he doesn’t have any clients on whose behalf he trades, or any customers in the traditional sense. Instead, he deals through a broker with financial futures exchanges. Neither his broker nor any exchange with which he places his trades pays him for his 16+ hours of work a week. The work he does is for his own benefit and is not done for, or in expectation of, remuneration.

Even if one were to take the view that the claimant trades with the market counterparties ultimately on the other side of his trades, looking through the broker and the exchange (which I consider would be the wrong analysis), those counterparties don’t pay him for his work either.

The claimant receives payment when he sells a futures contract, but that payment cannot be said in any sense to be payment for the work done. The 16+ hours of work that the claimant does on a weekly basis in furtherance of his futures trading amounts to his conducting research and analysis, placing trades and related administration. It doesn’t benefit any third party. Any payment he receives when he makes a sale is of the then prevailing market value of the contract (less any fees and commissions applied). Unlike when JW sold recordings of his music at a trade fair, or when a plumber invoices his customer for installing a boiler, or a crafter sells a gonk they have knitted on Etsy, no part of the payment received can be said to relate to work done. As such, it is incapable of satisfying the requirement in the regulation.