Upper Tribunal Tax and Chancery Chamber

UT/2023/000021 - [2024] UKUT 00334 (TCC)

Fecha: 12-Jul-2024

NHS legislation

NHS legislation

98.

The Trust points out that the NHS related legislation is replete with provisions which would only apply to the Trust as opposed to private operators when performing its public health functions. We have set out much of this legislation above by way of the background (see [15] to [20] above). The Trust points, for example, to the s1 duty in the 2006 Act to promote a comprehensive health service, in respect of which it is submitted the Trust performs a fundamental role. We do not disagree that the Trust and others bodies like it undoubtedly play a key role in the provision of health services but, as HMRC point out, so far as the duty imposed by s1 of the 2006 Act is concerned, this falls on the Secretary of State who is not the same person as the Trust (as other provisions referring to the two in distinction, such as s43, make clear). It is also true that the Court of Appeal in Northumbria specifically mentioned the s1 duty (at [124]) but that foreshadowed the statutory guidance in that case relied on by the taxpayer (the 2015 Parking Principles which had been issued pursuant to the s2 of the 2006 Act).

99.

Other 2006 Act provisions which the Trust relies on such as s2B, s6C (and the 2013 Regulations made thereunder) and s7A are similarly not relevant to NHS foundation health trusts, the relevant duties falling on local authorities.

100.

The Trust also points to the following 2006 Act provisions which we accept do refer to NHS foundation trusts such as the Trust. As we explain, they do not however in our views constitute a “special legal regime”:

(1)

The Trust refers to the fact that s43 is a primary legislative provision that does not apply to other operators. S43(3A) refers to information that must be specified in the Trust’s annual reporting; it appears that under paragraph 26 of Schedule 7 to the 2006 Act, NHS foundation trusts, by virtue of their status as public benefit corporations are obliged to prepare annual reports. However there is nothing on the face of these provisions, or in the evidence, to explain how these obligations have any real impact on the way in which the activity of service provision to the local authority is carried out.

(2)

S73B requires NHS foundation trusts and local authorities to have regard to any “documents” published by Secretary of State for Health & Social Care when exercising their public functions.However it was not clear to us what specific documents it might be suggested the Trust was obliged to have regard to or how any such obligation would then have a real impact on the way in which the service provision was carried out (as compared with private operators who carried out the relevant services).

(3)

S75 provides for arrangements between NHS bodies and local authorities but this seems irrelevant since there is no suggestion that such arrangements were entered into during the period relevant to the current claim. In any case, it has not been articulated in what respect the arrangements would demonstrate the necessary real impact on the Trust’s activities when compared with private operators.

101.

S82 provides for a duty of co-operation between NHS bodies and local authorities “in order to secure and advance the health and welfare of the people ..” but, again, the Trust’s case does not go on to explain in what respect this duty means that the way in which the Trust carries out the services is different to private operators.