“a hospital is a building used for treatment for the cure or amelioration of a medical condition as opposed to personal care; the former is likely to require short term occupation, the latter long-term residence.”
“Were it otherwise, any care home that provided any kind of treatment would immediately lose zero-rated status for its buildings. If and when a cure for cancer is discovered, any hospice that started trying to cure some of its inmates instead of merely easing their passing would again lose zero-rated building status. That cannot be right.” 53. We were referred to the Chancellor’s rejection (at [15], [24] and [25]) of the submission that assistance might be derived in construing the VAT legislation from definitions used in other statutory contexts such as the Mental Health legislation. 54. We were invited to note the striking similarities between the function and use of the Unit and those institutions considered in the following authorities: · General Healthcare · Fenwood · The Hospital of St John and St Elizabeth (VTD 19141); and · St Andrew’s Property Management (VTD 20499) 55. Mr Hitchmough made the following submissions from the evidence on the “badges” to be applied: (i) Treatment: The Unit does not hold medical equipment for diagnosis or treatment of medical conditions. It provides long-term accommodation in conjunction with personalised care to residents who will never be cured of their mental illness. The fundamental difference between mental health hospitals and establishments such as the Unit is that a mental health hospital is concerned with diagnosis and treatment. The Unit does not and cannot treat the illnesses in the conventional sense so that the residents are in any way cured; it seeks to equip the residents with life skills to help them live with their illness. The Unit helps those for whom hospital treatment can provide no further assistance. The assessments and the skill gaps they identify are fundamental to the course of care devised for and provided to residents. The medication taken by residents is not part of the care provided but a necessary pre-condition to enable a resident’s engagement in the social care provided. (ii) Diagnosis: By the time the residents reach the Unit most have a stable diagnosis and prescribed drug treatment. The assessment at the Unit is not a matter of diagnosing but rather identifying the social problems of the resident as a result of their illness and assessing what care may assist with those problems. (iii) In-patient facilities: These are clearly available at the Unit and unlike a typical hospital there are no outpatient facilities. (iv) Medical staff: Although many staff are medically trained, it is not their medical skills that they use as part of their daily interactions with residents. Whilst nurses help to administer medication and monitor compliance with it, most of their time is spent in one to one sessions with a focus on social care. The staff at the Unit will play football with the residents or may go to the cinema with them. (v) Length of stay: The usual length of stay for residents is approximately 2 years. (vi) Atmosphere: The majority of residents have their own room keys. The objective of the Unit is that the residents should treat it as their home for the duration of their stay. Residents are encouraged to personalise their own and the communal space. There is a takeaway evening on Fridays, a staff member is a certified gym instructor and runs gym sessions and residents share a communal laundry where they do their own washing. 56. Mr Hitchmough submitted that following the guidance given in Fenwood and General Healthcare the only reasonable conclusion to be drawn is that the Unit is not used as a “ hospital or similar institution ”
“ Helpful though we find these various definitions, we cannot treat any of them simply as substitutes for the missing statutory definition. We prefer the approach taken in direct tax law to the question of what constitutes a trade or adventure in the nature of trade – a phrase of considerable antiquity which has never been statutorily defined. What the Courts have done, down many decades, is to identify a number of “badges of trade”, of varying importance, which one can look for when deciding how to classify the chance acquisition of millions of rolls of toilet paper in Berlin, or an incautious bid at the auction of an inappropriate mansion where one's parents happened to have been in service. That is how we propose to treat the words in Notice 701/6/97 : not as a definition, but as evidence of what reasonable people (among whom the Commissioners are to be numbered) would regard as characteristic “badges” of a hospital. In their correspondence with the Appellant, the Commissioners also lay stress on staffing, treatment and the Funding Agreement; we shall take those into account as well.”
“The common element in all these definitions is the provision of medical treatment and care.” 63. The Chancellor went on to consider the context of Group 5 and the definition of a relevant residential purpose in Note 4 (at [17] and [18]): “Paragraphs (a),(b),(d),(e) and (g) all refer expressly to residential accommodation. Paragraphs (c) and (f) plainly imply the same quality. In their normal meaning neither hospitals, prisons, hotels nor inns exist for the purpose of providing residential accommodation; nor are they normally occupied as residences by those who are accommodated therein. Thus the exceptions appear to me to be designed to exclude the specified institutions if and in so far as their use might actually come within the principal parts of the definition. Accordingly, it is necessary in each case to contrast the relevant paragraph of Note (4) with the relevant part of the exception…The contrast is between a home or institution providing residential accommodation with personal care for those who need it for the prescribed reason and an institution providing medical treatment and associated care, usually on a short term basis. Accordingly I accept the submission of counsel for Fenwood summarised in the last sentence in para 13 above as reflecting the proper construction of the relevant words in the appropriate context.” 64. The submission referred to, and expressly accepted by the Chancellor, was that the focus of Note 4 in the context of Group 5 is “ on the intended use of buildings for residential accommodation, as opposed to short term occupation…a hospital is a building used for treatment for the cure or amelioration of a medical condition as opposed to personal care; the former is likely to require short term occupation, the latter long-term residence.” 65. We found the remainder of the authorities to which we were referred provided less assistance than Fenwood . The Tribunal in Wallis (which pre-dated Fenwood ) relied on the provisions of the Mental Health Act in reaching its decision; an approach which was expressly rejected by the Chancellor in Fenwood . The Tribunal in Hospital of St John and St Elizabeth also reached its decision by reference to other statutes and the Court of Appeal majority decision in General Committee of The Royal Midland Counties Home for Incurables at Leamington Spa[1954] 1 Ch 530 was also an approach rejected by the Chancellor in Fenwood . The more recent decision of the Tribunal in St Andrews Property Management Ltd [2007] UKVAT V20499 (30 November 2007 ) seemed to us to be consistent with the approach in Fenwood . 66. We adopted the agreed facts. This was not an appeal in which HMRC contended that the witnesses for the Appellant were untruthful but rather the parties invited us to reach different conclusions in considering the facts. 67. The main area of contention was whether the care provided at the Unit affected the residents’ illnesses through treatment, rehabilitation and mental health nursing such that it falls within the meaning of “ hospital or similar institution ”. 68. It was clear from the evidence (and there was no real dispute between by the parties) that residents stay on the Unit on average for a period of two years. The residents have usually been diagnosed prior to their residence at the Unit and the Unit does not accommodate those in an acute stage of illness although all residents will suffer from incurable and chronic mental health illnesses. The Unit has the personal aspects of a residence such as individual decoration, catering and laundry facilities. There is also a social aspect to the Unit in that residents go to the theatre, sporting events and the like with staff. In our view these facts applied to the relevant words point away from the Unit being a “hospital or similar institution” ; their primary function is to care for the residents and provide a home. However we did not find these features decisive of the issue; in some circumstances the length of stay may be superficial when viewed against what was actually done during that stay, which is no doubt why the Chancellor in Fenwood couched his judgement in the following terms: “The contrast is between a home or institution providing residential accommodation with personal care for those who need it for the prescribed reason and an institution providing medical treatment and associated care, usually on a short term basis… a hospital is a building used for treatment for the cure or amelioration of a medical condition as opposed to personal care; the former is likely to require short term occupation, the latter long-term residence…”
“ Taking “treatment” first, we cannot accept that the provision of some sort of treatment, without more, converts an institution into an institution similar to a hospital. Were it otherwise, any care home that provided any kind of treatment would immediately lose zero-rated status for its buildings. If and when a cure for cancer is discovered, any hospice that started trying to cure some of its inmates instead of merely easing their passing would again lose zero-rated building status. That cannot be right. …Putting it crudely, the staff are not there to mend the inmates' brains; they are there to re-educate them in how to use them.” 73. In our view the assessments, reviews and therapies undertaken by the staff at the Unit are wholly distinct from diagnosis. Moreover, whilst we accept that residents were treated in that their medication could be altered or changed, we nevertheless found this to be ancillary to the care provided. It is a consequence of the residents’ illnesses that they must be treated by medication; it does not, it seems to us, follow from that, that regular assessments of and tweaks to that medication, whether in the form of a higher/lower dosage or a change in the drug itself, lead to the conclusion that the Unit is a “hospital or similar institution”