“Item no. 2. The supply of any services consisting in the provision of medical care, or the supply of dental prostheses, by: (a) a person registered in the dentists’ register; (b) a person registered in the dental care professionals register established undersection 36B of the Dentists Act 1984 ; Item no. 2A. The supply of any services or dental prostheses by a dental technician.”
“Exemptions for certain activities in the public interest 1. Member States shall exempt the following transactions: … (e) the supply of services by dental technicians in their professional capacity and the supply of dental prostheses by dentists and dental technicians…”
“16. The Aligners are removable orthodontic appliances used by dental professionals to treat malocclusion in patients by repositioning their teeth. As part of the Invisalign system, a patented solution, dental professionals use advanced 3-D scanners and digital software to scan patients’ mouths. These scans are then used to manufacture the Aligners using a proprietary and patented invisible aligner material, the SmartTrack material. The Aligners are bespoke products specially designed and produced for each individual patient. Dentists use the bespoke Aligners to treat patients as part of a sequenced treatment plan that restores occlusal (bite) functionality. The Aligners are designed to reposition teeth and to respond to each patient’s unique characteristics to produce the desired clinical outcome. … 17. Once the Aligners have been manufactured and delivered to the dentist, the patient will arrange an appointment and the dentist will check the fitting of the Aligners and confirm the treatment plan. The treatment may take as little as six months, but it can differ depending on the complexity of the patient’s condition and the average is around 18 months. During the course of treatment, the patient will visit the dentist regularly to check the progress of the re-alignment and to collect the next set of Aligners. The patient will usually change their Aligners weekly. The difference between each set of Aligners as treatment progresses is small. The patient is required to wear the Aligner for 20 to 22 hours a day, only removing the Aligner for eating and drinking (this is primarily for hygiene reasons). The Aligners do not wear out as they are changed so frequently. 18. Aligners can be used to treat a number of conditions such as: misalignment between the teeth of the upper and lower dental arches when they bite together; open bite; overbite; underbite; crossbite; crowding; narrow or asymmetrical arches; and spacing problems. When there is malocclusion, the functionality of the bite is damaged, and the Aligners are used to replace the dysfunctional bite with a more functional bite. Malocclusion can be associated with functional difficulties with chewing (mastication) and with various medical issues, for example: (1) Inadequate regulation of blood glucose levels; (2) Speech issues; (3) Traumatic dental injury; (4) Various temporomandibular disorders; (5) Tooth surface loss; (6) Periodontal disease; and (7) Breathing difficulties. 19. Some people may wear their Aligners because they want to improve their smile but an imperfect smile may often be a sign that their bite is not functioning properly. Equally, some patients may not realise that they have a functional problem but they do. Aligners restore the natural function of the teeth eg enabling or improving biting and chewing of food, breathing and talking.”
“15. HMRC appeal on the basis that the FTT erred in its identification of the ordinary meaning of the word “dental prostheses”
“46. I do not accept this submission. I agree that “prevent” is an ordinary English word; that it is a stronger word than “hinder”; and that the sense of it is well captured by saying it refers to stopping something or making it impossible rather than merely impeding it or making it more difficult. But where I differ from Mr Stone’s submission is that I do not think that what prevents someone from leaving the country can be limited to certain defined categories: legal obligations, physical impossibility, medical advice and the like. There may be any number of reasons why a person in any particular case has to stay in the UK, and as a matter of ordinary experience we can distinguish between cases where they are compelled or obliged to stay (and hence are prevented from leaving) and cases where they simply find it more convenient or attractive or otherwise preferable for them to stay. … 54. It seems to me therefore that the position is this. The FTT is ultimately required, having found the primary facts, to make an assessment whether the circumstances prevented P from leaving the UK. That to my mind requires them to identify whether the circumstances were objectively compelling such as to prevent P from leaving. Those circumstances can include the reaction of P to such matters as the illness of a close relative, and other moral obligations operating on P in the circumstances, but the assessment whether such circumstances are really sufficiently cogent to amount to prevention is a value-judgement for the FTT, and can take into account such matters as whether P’s reaction is reasonable and in accordance with ordinary societal expectations, or is unreasonable and idiosyncratic.”
“63. In my judgement therefore the moral or societal obligations which the illness of a relative – or any other situation – imposes on P form part of the overall circumstances, and can and should be taken account of in considering whether the circumstances as a whole qualify as exceptional. I would therefore accept that Ground 4 of the appeal is well-founded.”
“70. Taking the two judgments together, one can extract the following principles: (1) The meaning of an ordinary English word is a question of fact: Cozens v Brutus at 861C. The meaning of a word depends on conventions known to the ordinary speaker of English or ascertainable from a dictionary, and is not a question of law because it does not in itself have any legal significance: Moyna at [24]. (2) The proper construction of a statute however is always a question of law: Cozens v Brutus at 861C. This is so whether the statute uses simple words or difficult ones: Moyna at [23]. This is because when a person uses a word in a particular sentence, what they intend to convey depends not only on conventional meaning but on the syntax, context and background. So when a word is used in an Act, the intention to be ascribed to “the notional legislator” (what is often, if perhaps inaccurately, referred to as “the intention of Parliament”) is a statement of law: Moyna at [24]. (3) If on its true construction a word used in an Act is intended to have its ordinary meaning, then it is a question of fact, not law, whether the facts as found do or do not come within the words of the Act as a matter of ordinary usage of the English language. This is what Lord Reid says in Cozens v Brutus at 861D, and is why he decided that since Parliament had given no indication that “insulting” was to be given any unusual meaning (“Insulting means insulting and nothing else”), it was for the magistrates, not for the Divisional Court or the House of Lords, to decide if Mr Brutus’s conduct was insulting: Cozens v Brutus at 863A-B. (4) Lord Hoffmann does not dispute this, although he clearly finds it a little odd that whether certain facts fall within some legal category is regarded as a question of fact rather than law: Moyna at [26]-[27]. But he accepts that there is a “good deal of high authority” (including Edwards v Bairstow) that whether facts as found fall one side or the other of a conceptual line drawn by the law is indeed a question of fact: Moyna at [25]. (5) The practical effect is that an appellate court that can only hear an appeal on a point of law has a limited ability to disturb the decision of a fact-finding tribunal on such a question. There can be a question of law but only of a limited character: the question would normally be whether their decision was unreasonable in the sense that no tribunal could reasonably reach that decision: Cozens v Brutus at 861E. Or, as Lord Hoffmann puts it, such an appellate court will not hear an appeal unless the decision falls outside the bounds of reasonable judgment: Moyna at [25]. He does however say that the degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question: Moyna at [27].”
“71. Applying those principles here: (1) The meaning of “exceptional” as an ordinary English word is a question of fact. In R v Kelly (Edward)[2000] QB 198 , a case which concerned the meaning of “exceptional circumstances” ins. 2 of the Crime (Sentences) Act 1997 , Lord Bingham of Cornhill CJ said at 208C: “We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance that is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
“78. After this survey of the relevant authorities, I think the position in the present case can be summarised quite briefly. The meaning of para 22(4) is, like any other question of statutory construction, a question of law. But there is no reason to think that “exceptional circumstances” in that paragraph has any special meaning. It is a matter for the FTT as the fact-finding tribunal to consider whether the circumstances as found by them (as primary facts) do or do not qualify as exceptional. This is also a question of fact, albeit one of evaluation or assessment rather than of primary fact. The UT can only disturb their conclusion on this if it involves an error of law. That can be shown in accordance with Edwards v Bairstow principles if the “true and only reasonable conclusion” contradicts their determination.”
“21. Where a term is undefined in VAT legislation, its meaning falls to be determined “by considering its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it forms part” (see Leisure, Independence, Friendship and Enablement Services Ltd and The Learning Centre (Romford) Ltd v HMRC[2020] EWCA Civ 452 at [99]). The same point was also made by the CJEU inCase C-228/20 I GmbH v Finanzamt H (‘I GmbH’) at paragraphs 33 and 34 (references removed): “33. In accordance with settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. 34. In that regard, it should be borne in mind that the terms used to specify the exemptions laid down in Article 132 of the VAT Directive are to be interpreted strictly, as they are a departure from the general principle that VAT is to be paid on each supply of services made for consideration by a taxable person. However, the interpretation of those terms must comply with the requirements of the principle of fiscal neutrality inherent in the common system of VAT and be consistent with the objectives underlying those exemptions. Accordingly, the requirement of strict interpretation does not mean that the terms used to specify the exemptions referred to in Article 132 must be construed in such a way as to deprive the exemptions of their intended effect.” 22. It follows that when considering the meaning of ‘prostheses’, we must consider the meaning of the word in everyday language; the context in which it occurs; and the objectives of the provision of which it forms part. As it is used to describe an exempt supply, we must interpret the word strictly but not in such a way as to deprive the exemption of its intended effect but consistently with the objectives underlying the exemption and in compliance with the principle of fiscal neutrality.”
“46. The exemption of the supply of dental prostheses made by dentists and dental technicians is intended to ensure that the supply of health-related products does not become inaccessible by reason of the increased costs of those products if their supply were subject to VAT (see, concerning Article 13A(1)(b) of the Sixth Directive, now Article 132(1)(b) of the VAT Directive, judgment in Commission v France, C 76/99, EU:C:2001:12, paragraph 23).”
“33. Therefore, the exemption provided for by the 1968 Law on VAT, which, since1 December 1997 , has applied to all supplies of dental prostheses regardless of the status of the supplier, is inconsistent with the wording of the corresponding provisions of the Sixth Directive. The broad interpretation advocated in that respect by the Netherlands government is at variance with the case law of the court cited in para 23 of this judgment according to which the exemptions provided for in art 13 of the directive, and in particular the terms ‘dentists’ and ‘dental technicians’, are to be strictly interpreted. 34. However, that government submits that the principle of strict interpretation of exemptions is not the only one of relevance for establishing the scope of the exemptions and that both their objective and the principle of fiscal neutrality must also be taken into account. Firstly, art 13A(1)(e) of the Sixth Directive, like art 13A(1)(b) and (c), has the objective of preventing medical care, in this case dental care, from becoming inaccessible on account of the increased costs that would follow if that care were subject to VAT (see, to that effect, EC Commission v France (Case C-76/99 ) [2001] ECR 1-249, para 23, and Ambulanter Pflegedienst f Kugler GmbH v Finanzamt fur Korperschaften I in Berlin (Case C-141/00 ) [2002] ECR 1-6833, para 29). That would, however, be the case if supplies of dental prostheses made by intermediaries were not exempt, as dentists, who effect exempt transactions themselves, would not be able to deduct input VAT and would, therefore, pass that tax on to their patients. Secondly, intermediaries and dental technicians effect the same supplies since it is of no account to dentists whether the supplier manufactures the dental prostheses himself or whether he subcontracts that transaction to a dental technician. 35. In this respect, it must be stated that the terms ‘dentists’ and ‘dental technicians’ in art 13A(1)(e) of the Sixth Directive are unambiguous. If the wording of that provision is not to be radically altered and the condition relating to the status of the supplier rendered inoperative, those terms clearly cannot be understood as including intermediaries who are not specifically either dentists or dental technicians. 36. Consequently, since the Community legislature did not intend to extend the exemption referred to in that provision to supplies of dental prostheses which are not made by dentists or dental technicians, neither the objectives of that exemption nor the principle of fiscal neutrality can compel a broad interpretation of art 13A of the Sixth Directive in that respect.”
“50. While I accept that, in principle, recourse to a dictionary is a permissible tool in interpreting any document, it remains the case that, as Steyn LJ said in Arbuthnott v Fagan [1995] CLC 1396, 1402: “Dictionaries never solve concrete problems of construction. The meaning of words cannot be ascertained divorced from their context. And part of the contextual scene is the purpose of the provision.” 51. Moreover, in view of the differing definitions it is worth recalling what Lord Denning MR said in his dissenting judgment on the interpretation of a will in Re Rowland[1963] Ch 1 , 10: “True it is that you must discover his intention from the words he used: but you must put upon his words the meaning which they bore to him. If his words are capable of more than one meaning, or of a wide meaning and a narrow meaning, as they often are, then you must put upon them the meaning which he intended them to convey, and not the meaning which a philologist would put upon them. And in order to discover the meaning which he intended, you will not get much help by going to a dictionary. It is very unlikely that he used a dictionary, and even less likely that he used the same one as you.”
“A composite expression must be construed as a whole, but the whole is not necessarily the same as the sum of its parts. Because a certain meaning can be collected by taking each word in turn and then combining their several meanings, it does not follow that this is the true meaning of the whole phrase. Each word in the phrase may modify the meaning of the others, giving the whole its own meaning.”
“…I do not think that the right way to apply a composite expression is, or at any rate is necessarily, to ascertain whether a particular subject matter falls within the meaning of each of the constituent parts, and then to say that the whole expression is merely the sum total of the constituent parts. In my judgment it is not necessary, in construing a statutory expression, to take leave of one’s common sense …”
“An artificial replacement for a part of the body.” (2) Black’s Medical Dictionary has a similar definition, which expressly refers to the replacement being not just of a missing body part but also a malfunctioning body part: “An artificial replacement of a missing or malfunctioning body part. Examples include false legs or arms fitted after AMPUTATION (see below); artificial hear valves; COCHLEAR IMPLANTS to improve hearing … ” (3) The following definition in the Oxford Concise Medical Dictionary (referred to by the FTT as the Oxford Reference) is also helpful: “prosthesis n. (pl. prostheses) any artificial device that is attached to the body as an aid. Prostheses include bridges, dentures, artificial parts of the face, artificial limbs, hearing aids and cochlear implants, implanted pacemakers, and many other substitutes for parts of the body that are missing or nonfunctional. Penile prostheses are malleable, semirigid, or inflatable rods inserted into the corpora cavernosa of the penis to produce rigidity sufficient for vaginal penetration in men with erectile dysfunction. – prosthetic adj.” (4) Taber’s Medical Dictionary then defines “prosthesis” by reference to replacement of missing body parts, artificial organs and: “… 3. A device to augment performance of a natural function, such as a hearing aid.” (5) The Oxford Dictionary of Dentistry, on which Align placed particular reliance contains the following definition: “prosthesis n. (adj. prosthetic) An artificial appliance used as a replacement for a body part or to correct a congenital abnormality. In dentistry this includes partial and complete dentures, bridges (fixed prostheses), and orthodontic appliances. A provisional prosthesis is an interim prosthesis worn for a limited period of time, either to allow time to construct the permanent prosthesis or to allow for tissues to heal. ”
“The commissioner adopted the definition of prosthesis from Collins’ Concise English Dictionary as ‘an artificial part [of the body] such as a limb, eye or tooth.’ We think that it would be difficult to improve upon the succinct definition in the Oxford Companion to Medicine, ‘An artificial substitute for a body part’. We do not find it easy to accept that the colostomy bag is a prosthesis in the proper sense, although it may perform a function which replaces that of part of the body. As Mr Lavery argued, it is no more than a receptacle, which is very different from the anal sphincter, and we do not consider that it can readily be regarded as an artificial substitute for that. Many artificial aids clearly could not be classed as prostheses, such as wheelchairs, zimmer frames or dialysis machines. We agree with the decision of the Social Security Commissioner who held in Decision no CSIB/74/96 that an incontinence pad is not a prosthesis, for it does not purport to be a substitute for a bodily part. We consider that a colostomy bag falls on the same side of the line and that it cannot be classed as a prosthesis. We note that reg 25(2) was amended in 1997 by the addition of the words ‘or, as the case may be, any aid or appliance which he normally wears or uses’, which clearly would include a colostomy bag.”
“2. The Tribunal concluded, materially to this appeal, that the Applicant was not a disabled person, with the effect that his claims fell away. We have not addressed at all the merits of his claim and as to whether, if he in fact is a disabled person, he has any prospect of establishing that any treatment of him, by dismissal or otherwise, had any causative relationship with the alleged disability. 3. That question of causative relationship must always be a significant question to be raised where the disability is, as is this case, said to be not an actual disability but one resulting from the concept which is commonly described as "deduced effect". That is the concept which is derived from Schedule 1paragraph 6 of the Disability Discrimination Act 1995 , which reads as follows:− "(1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day−to−day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect. (2) In subparagraph (1) "measures" includes, in particular, medical treatment and the use of a prosthesis or other aid. (3) Sub-paragraph (1) does not apply− (a) in relation to the impairment of a person's sight, to the extent that the impairment is, in his case, correctable by spectacles or contact lenses or in such other ways as may be prescribed; or (b) in relation to such other impairments as may be prescribed, in such circumstances as may be prescribed." We have not been informed whether there have been any prescriptions as set out under 6(3)(b). 4. The effect, as we have indicated, here would be that if this Applicant is disabled, he is disabled by virtue of the deeming provision in Schedule 1 paragraph 6, which, as we have indicated, must make it the more difficult to prove that any alleged unfavourable treatment is by virtue of that deemed disability. 5. Nevertheless, that is not the issue for us to decide, but whether the Tribunal erred in law in concluding that there was no such disability in this case. 6. It was either common ground below, or it certainly is common ground before us, that there is no disability in the ordinary sense, absent the concept of deduced effect. That is, that there was no effect on his every day life, in any sense, withins 1 of the Disability Discrimination Act 1995 by virtue of the matters to which reference is now made.”
“25. We find it very difficult to see how the plates and pins were a prosthesis. It is a familiar use of the language of prosthesis to refer to an additional limb, an artificial leg, or something of that kind as a prosthesis. 26. Mr O'Carroll submits that if an organ were inserted into the body which replaced the function of another organ or the existing organ, then albeit, internal, that too would be prosthesis. Assuming all that in Mr O'Carroll's favour, we do not see that it can necessarily be said that pins and plates, which do not replace anything in the body, but simply assist its functioning, would fall within the categorisation of prosthesis. We have already indicated that we do not consider that legal opinion offered by Dr Roy was of any assistance to the Tribunal, and thus his view that the pins and plates were to be regarded as a prosthesis would not have assisted.”
“3.2.2 Dental prosthesis A prosthesis is a replacement made of exogenous, inanimate material aiming at the best possible substitution of a body part in form and/or function. A dental prosthesis is an intraoral prosthesis used to restore (reconstruct) intraoral defects such as missing teeth, missing parts of teeth, and missing soft or hard structures of the jaw. Dental technology distinguishes, for instance, between fixed prostheses (including crowns, bridges and implants), removable prostheses (including dentures and removable partial dentures) and maxillofacial prostheses. Questionable is the VAT treatment of the supply of braces, titanium girders and the material that is used to manufacture dental prostheses. A brace is a device by which a malposition of the jaw or of teeth is corrected. It does not substitute a body part as required by the definition mentioned above. A brace is an aliud in relation to a prostheses and cannot be covered by the literal meaning of the term dental prostheses used in Article 132(1)(e) of the VAT Directive. According to the Commission services, including the supply of a brace within the scope of the tax exemption in question would not be justified in light of the principle of strict interpretation. This applies independently of the fact that prostheses and dental devices might be classified under the same category of the nomenclature.”
“3.3 Conclusions … (4) The term ‘dental prostheses’ within the meaning of Article 132(1)(e) of the VAT Directive is broad enough to also include the supply of parts of a dental prosthesis which are typically manufactured by dentists or dental technicians. However, it does not encompass the supply of dental devices and of material which is used to manufacture dental prostheses.”
“Dental prostheses 4. The VAT Committee almost unanimously agrees that the term ‘dental prostheses’ within the meaning of Article 132(1)(e) of the VAT Directive shall be seen as broad enough to also include the supply of parts of a dental prosthesis which are typically manufactured by dentists or dental technicians. According to the almost unanimous view of the VAT Committee it, however, shall not encompass the supply of dental devices and of material which is used to manufacture dental prostheses.”
“10. For completeness, HMRC’s written submissions appear to be addressing a different submission to that made by Align at the hearing. HMRC appear to be submitting that working papers are “admissible” in the sense that they can be placed before the Upper Tribunal. Align do not dispute that working papers are admissible in that sense, in the same way as textbooks, articles, HMRC guidance and a myriad of sources that are often placed before the tribunals and courts. However, Align’s submission is that they are not admissible as aids to interpretation of the legislation and nothing in HMRC’s written submissions undermines this conclusion.”