|Judgments - Beynon and Partners (Respondents) v. Her Majesty's Commissioners of Customs & Excise) (Appellants)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Beynon and Partners (Respondents)
Her Majesty's Commissioners of Customs & Excise (Appellants)
THURSDAY 25 NOVEMBER 2004
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Scott of Foscote
Lord Walker of Gestingthorpe
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Beynon and Partners (Respondents) v. Her Majesty's Commissioners of Customs & Excise (Appellants)
 UKHL 53LORD NICHOLLS OF BIRKENHEAD
"drugs and medicines and listed appliances which are ordered for [the patient] by a medical practitioner in pursuance of his functions in the health service…"
"a doctor shall render to his patients all necessary and appropriate personal medical services of the type usually provided by general medical practitioners."
"provide to a patient any appliance or drug, not being a Scheduled drug, which he personally administers or applies to that patient."
"whether a transaction which comprises several elements is to be regarded as a single supply or as two or more distinct supplies to be assessed separately."
"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: Customs and Excise Commissioners v Madgett and Baldwin (trading as Howden Court Hotel) (Joined Cases C-308/96 and 94/97)  STC 1189, 1206, para 24."
"13 The supply of prepared food and drink for immediate consumption is the outcome of a series of services ranging from the cooking of the food to its physical service in a recipient, whilst at the same time an infrastructure is placed at the customer's disposal, including a dining room with appurtenances (cloak rooms, etc.), furniture and crockery. People, whose occupation consists in carrying out restaurant transactions, will have to perform such tasks as laying the table, advising the customer and explaining the food and drink on the menu to him, serving at table and clearing the table after the food has been eaten.
14 Consequently, restaurant transactions are characterized by a cluster of features and acts, of which the provision of food is only one component and in which services largely predominate. They must therefore be regarded as supplies of services within the meaning of article 6(1) of the Sixth Directive. The situation is different, however, where the transaction relates to 'take-away' food and is not coupled with services designed to enhance consumption on the spot in an appropriate setting."
"26. Generally, patients self-administer medicines…But the administration, and application and fitting, of some medications, dressings and appliances requires the employment of the medical expertise of a doctor or nurse. Injections, such as vaccines, are the most common example of this, but there are others such as the fitting of certain contraceptive devices. In those cases, the GP is expected to provide in-house stock to administer to his patient…
27. In those circumstances, the NHS considers the supply of drugs, dressings or appliances to be part of the provision of treatment whereby the doctor's skills and knowledge [are] applied in rendering all necessary and appropriate personal medical services of the type usually provided by general medical practitioners, as required by paragraph 12(1) of Schedule 2 to the [National Health Service (General Medical Services) Regulations 1992 (SI 1992/635)]
28. The importance and appropriateness of the supply of drugs and appliances administered by a GP varies with the medical condition of, and other circumstances particular to, the patient. Immunisations provide a good example…As all vaccines require storage at controlled temperatures…it militates against patients obtaining vaccines by prescription and dispensary, and then taking them to a surgery for administration. It requires professional expertise to decide whether a patient is in a group which will benefit from immunisation. Questions to be considered include…Are there any relevant contra-indications?...Does the immunisation need to be postponed?
29. The doctor then needs to decide which vaccine to use (eg oral or by injection), its strength, the number of doses required and at what intervals, whether it should be given intradermally, subcutaneously or intramuscularly, with what length of needle it must be injected and in what part of the body…
Where a patient has a cut or other skin wound, parallel considerations are also needed. The GP must decide whether the injury is one requiring skin closure, whether closure is required without delay, what type of skin closure should be used, and whether it is appropriate for the GP to carry out the closure procedure himself. If so, he must choose an appropriate product or products (eg the type of suture material and needle)."
"…there is a single supply from an economic point of view: the commercial reality is that the appellants in personally administering or applying drugs and appliances to their…patients provide a single package of medical services of the type usually provided by GPs…
…it is artificial to regard supplies of drugs and appliances personally administered or applied…as independent and distinct supplies: they are supplied as part of a single package of medical services…
…the essential feature of the supply of a drug or appliance personally administered to a…patient is that of medical services appropriate and proportionate to the condition of the patient at the time of administration: the supply is not an aim in itself, having no free standing utility to the patient, but merely a means of his obtaining the benefit of medical services provided by the appellants
…as no prescription charge is made for drugs and appliances personally administered or applied to any patient…(a fact which we find indicative of the NHS expecting the drug or appliance to be supplied by the doctor from in-house stock), there is no separate price that might point to the supply being separate from that of medical services."
"Unless a dispensing practitioner is registered with HM Customs and Excise for VAT purposes…a VAT allowance shall be paid to cover the VAT payable on his or her purchase of drugs and appliances and containers."
LORD SCOTT OF FOSCOTE
LORD WALKER OF GESTINGTHORPE