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Grounds of Appeal
Grounds of Appeal
At the hearing, Mr Schofield confirmed that he was relying on three consolidated grounds of appeal. He was no longer relying on grounds 2, 5, 7 and 9 from the original nine grounds of appeal set out in the application to the UT for permission to appeal dated 8 April 2025. The additional ground first raised on 17 September 2025 was an amended form of the original ground 3 and formed the new Ground 1. Ground 2 incorporated original grounds 1 and 8. Ground 3 incorporated original grounds 4 and 6.
At my request and following the hearing, Mr Schofield put his three grounds of appeal, as now pursued, in writing. The three consolidated grounds of appeal are as follows:
GROUND 1: “FOOD INCLUDES DRINK”
It is arguable that the Tribunal erred in light of the subsequent judgment in Innovative Bites Limited v HMRC v DuelFuel Nutrition Limited [2025] EWCA Civ 293, such that a drink is a food absent absurdity, circumventing the need for a multifactorial assessment as to “food” if found to be a drink, in accordance with Note 1 to Group 1 of Schedule 8 of the VATA 1994.
(See: the Appellant’s Additional Ground document for argument)
GROUND 2: MULTIFACTORIAL ASSESSMENT: MARKETING
It is arguable that the Tribunal erred in conducting its multifactorial assessment by placing the only weight and/or undue weight singularly on marketing – above the effectively neutral weighting given to name, nutritional value, ingredients, palatability, Food Standards Authority regulated manufacturing, and food labelling requirements – effectively applying a test of marketing to whether a product is food, whilst also failing to distinguish HMRC v The Core (Swindon) Ltd [2020] UKUT 0301 (TCC) where marketing is more likely to be a dominant factor under the purpose of consumption test applied for beverages following Bioconcepts.
(See: Ground 1 of the Appellant’s original Application for Permission to Appeal for argument.)
GROUND 3: CONFLATING NUTRITIONAL VALUE WITH THE PURPOSE OF CONSUMPTION
It is arguable that the Tribunal erred in conflating nutritional content – simply containing nutrients, which will to a greater or lesser extent contribute to the maintenance of bodily functions – with food being consumed for the purpose of keeping the body alive. It is arguably a mistake to impose a test of whether foods have to be consumed or sold for the purpose of keeping the body alive or functioning rather than merely having nutrients capable of keeping the body functioning. Foods may be sold and consumed for all manner of purposes (see also Excepted Items 4 and 4A), rather than being for the purpose of maintenance of bodily functions.
(See: Ground 4 of the Appellant’s original Application for Permission to Appeal for argument.)