“We do not currently rate the effective domain for diagnostic imaging services. However, we found: · The service used current evidence-based guidance and good practice standards to inform the delivery of care and treatment. · Referral pathways to other agencies were in place for staff to follow to benefit patients. · Managers monitored the effectiveness of care and treatment … · The service made sure staff were competent for their roles. Staff had the skills knowledge and experience to deliver effective care …” 32. The scan packages offered by WTTW, using the current names, are summarised in the following table. Save for the Growth and Presentation Scan, the description of each scan is cumulative. For example, the Well-being + 4D scan provides everything that the Well-being scan and the Well-being + Gender scans provide. A 4D scan is a video incorporating a 3-dimensional image of the fetus. WTTW Scan Package Timing (Weeks) Description Well-Being Scan 16-40 Confirmation of single/multiple pregnancy, heartbeat check, detection of some abnormalities, growth check, position of baby and placenta and a Well-Being report. A single image of the fetus is provided Well-Being + Gender Scan 16-22 Gender confirmation, peek in 4D, 4 x photo prints with digital copies. There is a free re-scan if the gender cannot be clearly identified. Well-Being + 4D Scan (Picture Box) 24-34 4D baby scan. There is a free re-scan if suitable 4D images cannot be obtained, although that is rare. Well-Being + 4D Scan (Born to be a Star) 24-34 50% longer 4D baby scan Well Being + 4D Scan (Very important Baby) 24-34 100% longer 4D baby scan, 2 further photo prints and 2 large photo prints, scan movie recording, 2 x keyrings and prints. Growth and Presentation Scan 26-40 Well-Being scan and report, position of baby and placenta, head circumference, femur length, estimated fetal weight, 4 photo prints and digital images 33. Each scan lasts between 5 and 10 minutes. In the first 5 minutes the sonographer identifies information to complete the Well-Being report and identifies the gender of the fetus. The fetus is then positioned for 4D scanning depending on the package purchased. The data gathered throughout the scan is then rendered into 3D images and a 4D video. When the 4D video is played to the customer and her guests it is effectively a recording of the images produced during the scan. It is not played in realtime. It was not clear from the evidence exactly how long the 4D video was played for during the appointment. 34. The documentation and marketing material used by WTTW has evolved gradually in the period since 2013. I am satisfied that in 2015 and 2016, much of the marketing and other material used by WTTW emphasised that the scans were a “baby bonding experience”
“Management of the clinical problems of early pregnancy is multi factorial, involving a full clinical history, the request of appropriate tests and the correlation of the results of the tests with the history and clinical condition of the mother.” 66. In conclusion Ms Torrington described the appellants’ services as follows: “I have concluded that the services provided by the Appellant either replicate services already provided free at the point of use by the NHS or are non-evidence based non-clinically indicated scans accessed on an ad hoc basis by a self-selecting population.” 67. Miss Macpherson attended one of the franchisee clinics on16 April 2019 and she described her observations in her report. Her evidence was that the ultrasound scans offered by the appellants were for the purpose of ascertaining whether a pregnant woman was suffering from a medical condition. The scans enabled or assisted in the process of diagnosing medical conditions. She considered that the appellants’ practices and procedures were equivalent to the NHS. She also considered that FASP screening was the result of financial limitations in the NHS and that pregnant women would be well-advised to opt for early scans at 6-10 weeks and 32 week scans in addition to the FASP screening scans. Further, the provision of images by the franchisees could help relieve psychological suffering of women who have late miscarriages or still births. Miss Macpherson answered “yes” to questions (2), (3) and (4) posed in the direction relating to expert evidence referred to above. 68. There was some material in evidence to suggest that routine scanning, in the sense of scanning which is not clinically indicated and which is in addition to the NHS screening scans, may be beneficial to the health of women and babies generally. Miss Macpherson’s evidence was that a scan in later pregnancy, such as the Growth and Presentation Scan offered by WTTW, would identify an undiagnosed breech baby. The position of a baby may be identified manually using hands on the abdomen, in a process known as palpation. This is not always reliable and some medical practitioners are better at it than others. She described an undiagnosed breech as “phenomenally common”
“… we see about one stillbirth a month here so with this extra screening at 36 weeks as standard we expect to be able to save up to seven lives. We know that about 60% stillbirths after 34 weeks are due to insufficient bloodflow to baby and this can be prevented if diagnosis is made by scan earlier. This extra scan has many advantages: it will help to diagnose any problems with growth restrictions., it will also help to diagnose babies that are in breech position and wouldn’t otherwise be diagnosed until late in labour and it will also be able to tell hospital staff where the placenta is lying.” 69. The article acknowledged, as did Miss Macpherson, that this was in the nature of research and that it could be 20 years before evidence would support routine scanning at 36 weeks. Guidance of the National Institute for Health and Care Excellence (“NICE”) for antenatal care in uncomplicated pregnancies does not support routine scanning in later pregnancies. Having said that there was some evidence that other European countries provide more scanning than the NHS. 70. I cannot say on the evidence adduced that additional routine scanning over and above the NHS provision under FASP would be beneficial to health generally, whether physical or mental. There is no research evidence to that effect. Indeed, the only evidence before me other than anecdotal evidence suggested there was no improvement in outcomes from routine late pregnancy scanning and no evidence of any maternal psychological effects whether positive or negative. Nor was there any reliable evidence before me that the UK offers more limited scanning under the NHS than other countries. 71. The franchise model operated by WTTW includes detailed policies and standards which must be complied with by all franchisees. There are guidelines and standard form documentation in relation to the booking process, the arrival of customers at the clinic, preparation for the scan, the scan itself and dealing with matters following the scan. The scanning machines used in each clinic are the latest GE Voluson models which are at least equal to and in many cases superior to models used in the NHS. 72. The appellants policies include detailed fetal abnormality policies. If an abnormality is identified during a scan, the scan continues in order to gather as much diagnostic information as possible. In WTTW scans, which are recorded, once the sonographer has gathered all diagnostic information the recording is stopped. There are procedures in place to ensure that the woman is provided with an explanation of the sonographer’s concerns in an open, honest and sympathetic way. 73. The appellants have procedures and pathways for referral to the NHS. In First Scan, the clinic manager will contact the local NHS Early Pregnancy Unit directly with a view to arranging an appointment for the woman. A detailed scan report will be given to the woman together with a covering letter to take to an appointment at the Early Pregnancy Unit. It is made clear that the sonographer will be prepared to discuss their observations with the woman’s medical team. 74. Ms Walton has been responsible for documenting the pathways for referrals to the NHS since 2017. For all locations where there is a clinic, she has contacted the local hospitals and obtained a direct line contact number, including emergency contact numbers. In relation to First Scan clinics, this would be the contact number and details of Early Pregnancy Units in those hospitals. Ms Walton has discussed the services provided by the franchisees with staff in those hospitals. The details are documented and available to the franchisees. When referrals are made through these pathways, including obtaining appointments, the woman involved is supported and kept informed by the scan assistants to ensure that they understand what is going to happen and when. 75. There was some evidence, albeit not comprehensive as to how NHS hospitals might rely on a scan conducted by the franchisees, if at all. I accept Ms Walton’s evidence based on her experience and feedback from customers that the NHS will rely on scans provided by the franchisees in relation to a missed miscarriage. This is the situation where a scan reveals death of the fetus but without any physical symptoms. It is only diagnosed as a missed miscarriage after two scans. The NHS accepts a franchisee’s scan as the first scan and will then arrange a second scan to complete a diagnosis. 76. In WTTW, contact is made with Fetal Medicine Units and Maternity Units at hospitals local to the franchisees. Where an abnormality is identified the process includes a phone call by the sonographer to the NHS hospital as soon as reasonably possible whilst the woman is still in the clinic. This is followed by a written report sent to the NHS hospital either with the woman or directly to the hospital. 77. There was a question as to whether NHS hospitals had actually agreed and operated these pathways. I accept Ms Walton’s evidence that save in unusual circumstances, NHS hospitals would not question the need for a referral by franchisees. The CQC Report for Darlington dated30 May 2019 includes the following information about WTTW: “Scans available at the location are offered as an additional service, and are provided to complement NHS pregnancy pathway scans. The service does not offer diagnostic anomaly scans, but there are established pathways to refer women to primary antenatal (NHS) providers; should a potential anomaly or concern be identified.” 78. The NHS anomaly scan has a better chance of spotting heart defects. This is because the NHS carry out what is known as a “four chamber heart view” which WTTW does not carry out. There are other abnormalities which the WTTW scan does not look for but which are looked for in the NHS anomaly scan. For example, an increased nuchal fold. WTTW has an 18 point scanning sequence. There are no anomalies included in the WTTW scan which would not be observed in the NHS anomaly scan. However, WTTW and First Scan might pick up certain anomalies earlier than the NHS. For example, ectopic pregnancies can be spotted before the NHS 12 week scan. The evidence was that 17% of scans conducted by First Scan and 7% of WTTW scans identify an abnormality. Ms Hughes’ evidence, which I accept, is that clinics in which she had an interest had identified 7 ectopic pregnancies in the last year. A woman suffering from an ectopic pregnancy might not be showing any symptoms. There was also evidence that on one occasion a woman suffering vaginal bleeding and cramps at 10 weeks was able to get a quicker appointment through the Appellant. 79. The appellants adduced evidence that their detection rate of abnormalities compares favourably to the NHS detection rate. However, that evidence was not convincing and I cannot make any finding in this regard. In any event, as Ms Vicary submitted, I am not strictly concerned with the quality of the appellants’ services, still less with the quality of those services compared to NHS services. It was no part of the appellants’ case that they provided a better service than the NHS, rather that the service was complementary to provision under the NHS and to some extent at least it replicates the NHS service. I am satisfied that at all material times the appellants’ terms and conditions have emphasised that their scans are not a substitute for the NHS screening programme. 80. The appellants witnesses estimated that if they were simply providing a baby bonding service with the ability to view and keep images including 4D images then there would be a cost saving of approximately£100,000 per clinic per year. This relates principally to a saving of£62,000 if ultrasound operators were used rather than qualified sonographers,£31,000 if scan assistants were not employed and£8,000 if cheaper ultrasound equipment was used. Further, WTTW would save approximately£84,000 per annum in respect of professional indemnity insurance premiums for all franchisees. I accept that evidence. 81. The respondents relied on a “Position Statement on Screening” issued by the Royal College of General Practitioners (“RCGP”) and the British Medical Association (“the Position Statement”). This stated as follows: “The RCGP does not support non-evidence-based screening which has not been approved by the UK National Screening Committee (NSC) or NICE … The RCGP believes that if presented with results of screening which has not been approved by UK NSC [or] NICE … the organisation initiating the screening should not assume that general practitioners will deal with the results. Organisations offering these interventions must organise and fund follow up so that patients are adequately supported and so that the interventions do not impact negatively on the use of NHS resources.” 82. Ms Torrington’s evidence was that whilst the Position Statement did not refer specifically to antenatal screening and the franchisees would be referring to hospitals rather than GPs, the principles in the Position Statement were applicable to the appellants’ scans. It was not clear to me which principles were said to be applicable, but the Position Statement does refer to such screenings lacking evidence of benefit, having the potential to mislead patients and the tests themselves causing stress. The guidance suggests that screening providers should only offer screening recommended by NSC or NICE, otherwise ensure that patients give fully informed consent and offer follow up and appropriate care to manage the results of the tests. 83. It does not seem to me that the Position Statement adds anything to the other evidence adduced by the parties. Ms Torrington has already distinguished screening scans and diagnostic scans, explaining that the appellants’ scans are not diagnostic scans in that sense because they are not clinically indicated. It was common ground that the appellants’ Well-being report following a scan does not cover all the abnormalities covered by the FASP scans. Further, the scans conducted by the appellants were not intended as a substitute for the FASP scans. 84. The appellants’ case is that the terms and conditions on which customers contract have evolved in the same way as the marketing material. However, they contend that the service provided has always been the same. As I understand it, both parties accept that the services provided by the appellants have remained the same throughout the periods covered by the decisions. The appellant says that the later terms and conditions and marketing material properly reflect those services. The respondents say that the earlier terms and conditions and marketing material properly reflect those services. I shall focus on the nature of the services provided, although I also take into account that the terms and conditions at any one time might shed light on the true nature of the services. 85. Prior to February 2017, the terms and conditions did not refer to a Well-being scan. It is fair to say that they focussed on imagery and obtaining the best imagery. Scans were offered on the understanding that they were not a substitute for NHS scans. After February 2017 the terms and conditions referred to the primary purpose of every package as the protection and maintenance of the health of the mother and fetus. 86. Before and after February 2017, the terms and conditions included a clause in capital letters stating that WTTW could not guarantee full face images of the baby which would depend on the baby’s position in the womb. A similar provision was found in the marketing material. 87. It was suggested to Mr Harrison that the terms and conditions changed in February 2017, only after WTTW had received HMRC’s decision in December 2016 and with the present dispute in mind. Mr Harrison said that this was a coincidence and that the terms and conditions were drafted by a firm of solicitors who were unaware of the VAT issue. I do not accept that it was a co-incidence and it seems more likely that Mr Harrison was mistaken in this regard. However, I do accept Mr Harrison’s evidence that notwithstanding the terms and conditions, all scans carried out by WTTW would start with a Well-being scan. 88. I accept that women purchasing a package that included 4D imagery would want to see reasonably good imagery. It was appropriate therefore to manage such expectations with an appropriate clause in the terms and conditions. I do not accept that the presence of such a clause in capitals is a significant indicator that either the appellants or their customers considered that the principal purpose of the scan package was to produce imagery. I accept Mr Harrison’s evidence that once a mother knows that everything is alright with the fetus, her priorities might change and then focus on the imagery available in the package. Discussion 89. During the parties’ submissions there was some discussion as to whether the supplies made by the appellants were single supplies, or single composite supplies. Ms Vicary submitted that all supplies in relation to First Scan and supplies in relation to WTTW of Well-being scans were single supplies. They provided a report on the pregnancy and little if any imagery. She also submitted that the other scan packages were single composite supplies. I was referred to the principles to be applied in distinguishing a single composite supply from multiple supplies, derived from decisions of the ECJ and CJEU in Card Protection Plan Ltd v Commissioners of Customs and ExciseCase C-349/96 (“Card Protection”) and Levob Verzekeringen v Staatsecretaris van FinancienCase C-41/04 (“Levob”). 90. In Card Protection Plan , the ECJ said as follows: 27….[It] is not possible to give exhaustive guidance on how to approach the problem correctly in all cases. 28. However, as the court held in Faaborg-Gelting Linien A/S v Finanzamt Flensburg (Case C-231/94 )[1996] STC 774 at 783,[1996] ECR I-2395 at 2411–2412, paras 12 to 14, concerning the classification of restaurant transactions, where the transaction in question comprises a bundle of features and acts, regard must first be had to all the circumstances in which that transaction takes place. 29. In this respect, taking into account, first, that it follows from art 2(1) of the Sixth Directive that every supply of a service must normally be regarded as distinct and independent and, second, that a supply which comprises a single service from an economic point of view should not be artificially split, so as not to distort the functioning of the VAT system, the essential features of the transaction must be ascertained in order to determine whether the taxable person is supplying the customer, being a typical consumer, with several distinct principal services or with a single service. 30. There is a single supply in particular in cases where one or more elements are to be regarded as constituting the principal service, whilst one or more elements are to be regarded, by contrast, as ancillary services which share the tax treatment of the principal service. A service must be regarded as ancillary to a principal service if it does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied (see Customs and Excise Comrs v Madgett and Baldwin (trading as Howden Court Hotel) (Joined cases C-308/96 and C-94/97)[1998] STC 1189 at 1206, para 24). 91. It was held by the Upper Tribunal in HM Revenue & Customs v The Ice Rink Company Limited[2019] UKUT 108 (TCC) t hat the “typical consumer” must be a recipient of the package of supplies whose characterisation is in dispute, and not simply a general customer of the business. 92. In Levob , the CJEU affirmed the approach that had been set out in Card Protection where one supply is “principal” and others are “ancillary”
“22. The same is true where two or more elements or acts supplied by the taxable person to the customer, being a typical consumer, are so closely linked that they form, objectively, a single, indivisible economic supply, which it would be artificial to split .” 93. The facts of Levob involved a supply of basic software which was customised for Levob to use in its business. In applying that test the CJEU stated as follows: “24. … it is not possible, without entering the realms of the artificial, to take the view that such a consumer has purchased, from the same supplier, first, pre-existing software which, as it stood, was nevertheless of no use for the purposes of its economic activity, and only subsequently the customisation, which alone made that software useful to it.” 94. The principles to be derived from the authorities in this area were summarised by the Upper Tribunal in HM Revenue & Customs v The Honourable Society of Middle Temple[2013] UKUT 250 at [60]: “60. The key principles for determining whether a particular transaction should be regarded as a single composite supply or as several independent supplies may be summarised as follows: (1) Every supply must normally be regarded as distinct and independent, although a supply which comprises a single transaction from an economic point of view should not be artificially split. (2) The essential features or characteristic elements of the transaction must be examined in order to determine whether, from the point of view of a typical consumer, the supplies constitute several distinct principal supplies or a single economic supply. (3) There is no absolute rule and all the circumstances must be considered in every transaction. (4) Formally distinct services, which could be supplied separately, must be considered to be a single transaction if they are not independent. (5) There is a single supply where two or more elements are so closely linked that they form a single, indivisible economic supply which it would be artificial to split. (6) In order for different elements to form a single economic supply which it would be artificial to split, they must, from the point of view of a typical consumer, be equally inseparable and indispensable. (7) The fact that, in other circumstances, the different elements can be or are supplied separately by a third party is irrelevant. (8) There is also a single supply where one or more elements are to be regarded as constituting the principal services, while one or more elements are to be regarded as ancillary services which share the tax treatment of the principal element. (9) A service must be regarded as ancillary if it does not constitute for the customer an aim in itself, but is a means of better enjoying the principal service supplied. (10) The ability of the customer to choose whether or not to be supplied with an element is an important factor in determining whether there is a single supply or several independent supplies, although it is not decisive, and there must be a genuine freedom to choose which reflects the economic reality of the arrangements between the parties. (11) Separate invoicing and pricing, if it reflects the interests of the parties, support the view that the elements are independent supplies, without being decisive. (12) A single supply consisting of several elements is not automatically similar to the supply of those elements separately and so different tax treatment does not necessarily offend the principle of fiscal neutrality.” 95. Ms Barnes submitted that the supply of a First Scan and a Well-being scan would be a single supply on the basis of Levob because the report and the imagery provided to customers were closely linked such that that they form a single, indivisible economic supply which it would be artificial to split. The other packages were single composite supplies on the basis of CPP because they comprised a principal service, which was the imagery and baby bonding to which any medical element was to be regarded ancillary. 96. I have set out the parties’ submissions for the sake of completeness, but it does not seem to me that the question of whether a scan package involves a single supply or a single composite supply takes matters very much further in relation to the ultimate issue in this appeal. The question is not whether there is a single supply or a multiple supply. It is agreed that each package is a single supply. The real question is whether those single supplies are properly characterised as supplies of medical care. The test in d’Ambrumenil is in some respects similar to the test for single and multiple supplies in CPP. D’Ambrumenil involves identifying whether the principal purpose of the supply is therapeutic and/or prophylactic in nature. CPP involves identifying whether there is an element which is to be regarded as constituting the principal service, with one or more elements regarded as ancillary services. Hence, applying a CPP analysis involves identifying what elements are the principal service and what elements are ancillary. It might follow from that analysis that a single composite supply is characterised by reference to the principal service. However, in my view that is an unnecessary step in the analysis. What is required is an approach based on the principles set out in d’Ambrumenil. The question, looking at the supply, is whether the principal purpose of the supply is therapeutic and/or prophylactic in nature. In other words, is the principal purpose for which a typical consumer purchases a scan package the diagnosis, monitoring, treatment or prevention of illness. In general terms, the protection of health. 97. Ms Barnes submitted that the appellants’ business model does not suggest that the primary purpose of the supplies is the protection of health. She relied on a number of factors which she submitted, cumulatively point towards supplies which are not medical care: (1) The scans are not clinically indicated and are offered in isolation without any other medical checks such as blood tests, blood pressure tests or reference to customers’ full medical histories. The efficiency of the scans in terms of diagnosis was therefore reduced. Further, the scans are limited in nature, and do not purport to check for all abnormalities screened for in the NHS screening programme under FASP. In relation to First Scan, all the abnormalities identified in the appellants’ fetal abnormality policy would be identified at an NHS 12 week scan. In many instances the woman would be entitled to an early scan in the NHS. First Scan may be characterised as a reassurance service. (2) Whilst scans may provide reassurance, it is only at a single point in time and reassurance does not amount to a therapeutic aim. There is insufficient evidence to establish any medical benefits for scanning in the third trimester. In some cases the appellants undertake scans contrary to BMA guidance. Mr Stothart accepted that re-scans may be carried out simply because the images obtained were not adequate. (3) The appellants do not provide any treatment which may be required in the light of a scan. The referral pathways are simply telephone numbers to NHS hospital departments and sometimes contact names. Further, there is no evidence that the NHS would rely on the appellants’ scans, save possibly in relation to First Scan where a missed miscarriage was identified. (4) The appellants’ marketing of the services emphasises the “bonding experience” and the clinics were set up in such a way as to support that bonding experience. Similarly, the appellants’ terms and conditions focus on the provision of high quality images because that is the primary purpose of the supplies. Customer reviews suggest that their perception was of a bonding experience. 98. Overall, Ms Barnes submitted that the core feature of the appellants’ supplies is the opportunity to see and keep the images, determine the gender of the fetus and/or have a baby bonding experience. The fact that part of the service might involve a medical diagnosis is not determinative of the issue. On the present facts any diagnosis, including the detection of abnormalities is an “incidental benefit”. 99. The fact that there is no clinical indication requiring a scan is not true of all scans offered by the appellants. In particular there is evidence that some of the First Scans do have a clinical indication. Even where there is no clinical indication, that does not mean that the scans do not amount to medical care. For example, HMRC accept that hearing tests or sight tests amount to medical care without the need for any clinical indication. 100. I was referred to HMRC’s VAT Notice 701/57 Health professionals and pharmaceutical products which sets out HMRC’s understanding as to the scope of the exemptions for medical care. It is not authoritative and as such in the context of the present issues it does not add much to the submissions of the parties. I do note however, the Notice states that health screening under private medical insurance policies to detect early signs of disease and routine check-ups provided by employers such as blood pressure, diabetes and cholesterol checks are treated as exempt because they are aimed at protecting, restoring and maintaining health. There is no suggestion the exemption is limited to tests for which there is a clinical indication. Having said that, I accept Ms Barnes’ submission that there is little utility in comparing and contrasting the treatment of supplies in different contexts. 101. It is common ground that the appellants’ supplies are not intended to replace NHS services. I am satisfied that they are complementary to the NHS services. It is undoubtedly the case that they provide reassurance to customers and may reduce anxiety, even if the principal purpose of some customers might be to have a baby bonding experience and to view and obtain imagery of the fetus. However, I am not satisfied on the evidence that the appellants’ services provide a psychological benefit. I accept that simply providing reassurance is not sufficient to characterise the supply as a supply of medical care. 102. I accept Ms Vicary’s submission that it is not relevant whether the appellants’ services are superior or inferior to the screening scans provided by the NHS. I am not concerned with a qualitative analysis in that sense. Having said that, if the appellants’ services did simply replicate the NHS provision with the addition of imagery then that might suggest that the principal purpose of customers was to obtain the imagery. 103. Ms Barnes correctly pointed out that the Service Analysis shows that the majority of WTTW customers, some 55% choose a package including gender and 4D imagery. She submitted that this suggests that what those customers wanted was a bonding experience and/or the imagery to take away. Further, it suggested that identifying gender was a significant incentive to those customers even though it had nothing to do with medical care. In my view that latter point overstates the case, given that identifying the gender together with a “peek” at 4D imagery and the provision of 4 digital photographs costs only£4 more than a Well-being scan. It seems to me that the pricing of the WTTW scans does give some indication of the relative importance to customers of what is being purchased. A Well-being scan costs£55 , and the most expensive 4D scan costs a further£36 , suggesting to some extent that the Well-being report is a significant element of the supply. 104. The Service Analysis also indicates that 45% of WTTW customers choose only the Well-being scan. Ms Barnes maintained that the primary purpose of such scans remained seeing the baby on a monitor, but realistically accepted that the respondents’ case was less strong in relation to such supplies. 105. The most commonly purchased service from First Scan was where a pregnant woman is showing symptoms of pain and bleeding. This accounted for some 32% of early pregnancy scans. Again, Ms Barnes realistically accepted that the respondents’ case was less strong in relation to such scans. However, she also submitted that there was no evidence as to whether such customers might have also had an NHS scan but wanted further reassurance. Ms Barnes characterised all First Scan supplies as “re-assurance scans”. 106. I acknowledge that the appellants do not check for all the abnormalities which the NHS checks for, and they do not offer any treatment following a scan. They merely refer to the NHS as appropriate through established pathways. 107. As I have said, it is necessary to consider each scan package separately, in light of what is provided in that package, why a typical customer of that package is purchasing that package and the evidence as a whole as to the circumstances in which the package is provided. I shall consider each scan package on that basis. 108. Early pregnancy scans under the First Scan franchise provide an obstetrics report directed towards confirming whether there is a viable pregnancy, including the identification of any medical issues arising in the pregnancy, for example an ectopic pregnancy. Some of these scans appear to be clinically indicated, in that some 32% of them are “symptomatic scans” where a customer indicates that she has been suffering pain or bleeding. The only imagery available is from the sonographer’s monitor and the provision of a single 2D image. I do not consider that these scans, or the other types of First Scan, involve women whose principal purpose in purchasing the scans is a baby bonding service or obtaining imagery. Scans which are purchased as viability scans and dating scans confirm the existence of a viable pregnancy and provide medical information about that pregnancy. I am satisfied that the principal purpose of typical customers purchasing those scans is to diagnose a medical condition, including pregnancy and associated conditions. 109. Approximately 16% of First Scans are purchased as “reassurance scans”