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You are here: BAILII >> Databases >> United Kingdom VAT & Duties Tribunals Decisions >> Fineline Bedrooms & Kitchens Ltd v Revenue & Customs [2007] UKVAT V20049 (23 February 2007)
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Cite as: [2007] UKVAT V20049
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Fineline Bedrooms & Kitchens Ltd v Revenue & Customs [2007] UKVAT V20049 (23 February 2007)

    20049

    VALUE ADDED TAX SUPPLY — Appellant firm supplying kitchen, bedroom and study furniture — services of fitters supplied to company or customers? — no formal contract between firm and fitters — supply by fitters to customers — appeal allowed.

    MANCHESTER TRIBUNAL CENTRE

    FINELINE BEDROOMS & KITCHENS LIMITED Appellant

    - and -
    THE COMMISSIONERS FOR

    HER MAJESTY'S REVENUE AND CUSTOMS Respondents

    Tribunal: David Porter (Chairman)
    Peter Whitehead

    Sitting in public in Manchester on 16 January 2007

    Jonathan Cannan of counsel for the Appellant

    Nigel Bird, counsel, instructed by the Acting Solicitor for HM Revenue and Customs for the Respondents

    © CROWN COPYRIGHT 2007

     
    DECISION
    The issues
  1. Fineline Bedrooms & Kitchens Limited ("the Appellant") appeals against an assessment dated the 25 October 2005 pursuant to section 73 of the Value Added Tax Act 1994 in the sum of £126,492 (plus interest) representing VAT arrears for the periods 12/02 to 06/05.The assessment was reduced to £67,944 on the 13 April 2006. The Appellant contends that it supplied furniture only and that the fitting service was supplied by independent self-employed fitters to the company's customers. The Commissioners contend that the Appellant supplied both the furniture and fitting services.

    2. The evidence
  2. Nigel Bird of counsel appeared on behalf of Her Majesty's Revenue and Customs and produced two bundles of documents for the tribunal, a skeleton argument and the cases referred to below. Jonathan Cannan of counsel appeared on behalf of the Appellant, produced a skeleton argument and the cases referred to below.

  3. Oral evidence was given on behalf of the Appellant by Michael Lee Jackson (Managing Director of the Appellant); Trevor Keith Joiner (a customer of the Appellant); and Andrew Kenneth Daniels (one of the recommended fitters).

  4. The Commissioners relied on an uncontested witness statement by Mrs Lisa Galloway.

    5. The cases
  5. We were referred to the following cases:-

    6. On behalf of the Appellant
    • Kieran Mullen Ltd v Customs and Excise Commissioners [2003] EWCH 4 (Ch)
    • Ringside Refreshments v Customs and Excise Commissioners [2003] EWCH 3043 (Ch)
    On behalf of the Commissioners the Tribunal decisions of
    • 18756:J M Ledger& C E Ledger trading as Lewis Carpets
    • 17494: I. Michael Wilson trading as A A M & S Interiors; 2. Michael Wilson and Stuart Wilson trading as A M & S Interiors; 3. M & S Interiors Limited
    • 1293 I & RA Ramsey trading as Kitchenformat.
    The legislation
  6. Section 1 of the Value Added Tax Act 1994 (" the 1994 Act") provides:

    7. "1(1) Tax shall be charged on any supply of goods or services made in the United Kingdom, where it is a taxable supply made by a taxable person in the course or furtherance of any business carried on by him.
    (2) Tax on any supply of goods or services is the liability of the person making the supply and becomes due at the time of the supply".
    The Facts
  7. We find the following facts: Evidence was given by Mr Jackson on oath. It was suggested by Nigel Bird, on behalf of the Commissioners, that Mr Jackson did not have first hand knowledge of the shop floor activities of his staff, as he was managing the business. The activities of the business do not appear to us to be particularly complex and we considered that for the most part Mr Jackson is fully aware of the procedures within the business. Where we consider he is not we shall say so.

  8. The Appellant has three showrooms: one at Nelson; one at Chadderton and one at Milnrow. Prior to 2002 the Appellant manufactured and fitted Bedrooms and Kitchens using its own employees and sub-contracted fitters. It is agreed by both parties that, for the purposes of the assessments, the fitters are treated as independent sub-contractors both for income tax purposes and for the purposes of this hearing. One of Mr Jackson's employees had arranged, at that time, for a marketing company to produce some advertising material, which confirmed throughout, that the Appellant installed all the furniture it made. Further Mr Jackson had allowed the Marketing Company to create a web site for the Appellant, which effectively transposed the details from the brochures onto the web site. Some 10,000 brochures had been printed in 2002 and we were told that of the remaining 9000 a large number had been destroyed since it was considered that they might be misleading. It would seem that a few are still handed to customers, although we were told by Mr Jackson that the customers were told throughout the period of the assessment and presently that the Appellant no longer fits the furniture. The Appellant still refers to its web site, as was evidenced from a recent advertisement, which had appeared in the local paper.

  9. Customers come to the Appellant from a variety of sources as follows:

    10. Previous Customers 15%
    Internet (including the web site) 1%
    Yellow Pages 6%
    Newspaper advertising 6%
    Passing Trade 38%
    Radio advertising 2%
    Recommendations 31%
    Signs 1%
  10. The customers initially visit one of the showrooms and look at the displays. If they wish to obtain a quote for a bedroom or a kitchen the Appellant arranges for a designer to go to their house to take measurements for the furniture. A plan is drawn up and the customer is asked to return to the shop to comment on the proposed plan and the design.

  11. Concurrently, the designer will prepare an estimate for fitting the furniture. This consists of a document headed " Fitter's suggested costings" and it is presented to the customer along with the plan and design. It sets out the number of units, which are charged out at a fixed rate. We were told that £25 per unit is the industrial standard. The various requirements are identified on the form:-

    • Electrical – such as built in appliances; fridges washers with appropriate electrical socket requirements; lighting etc.
    • Plumbing – to include sink and taps; moving radiators etc.
    • Sundries – Other visits the fitter might need; removal of the existing kitchen; disposal of waste etc.
    • Tiling - knocking off tiles and laminated floor.
    • There is then a space for additional works.

    At the end is the "Total fitting estimate @ and then the price.

    The bottom of the form states:-

    • Installers are not employed by Fineline Bedrooms & Kitchens Limited
    • It is the customers responsibility to ensure that a 30 amp supply and ring main are present in the kitchen unless charged for on the fitting estimate.
    • Installation work carries a twelve month guarantee.
  12. The plan is drawn to scale by the designer and is handed with the "fitters' suggested costings" to the fitter. The plan is two sided. The back page may or may not have instructions on it. The legend on the right hand side refers to details of electrical and plumbing work to be carried out by the customer prior to fitting. It was unclear from the evidence whether this information was put on by the fitter later or by the designer in the first instance. We suspect the latter.

  13. The heading on the plan is: the customers name, address and telephone number. The drawing takes up three-quarters of the page and on the right hand side there is a legend. The largest part of the legend sets out a detail of the units and fittings. Immediately underneath those appear the details of the appliances. At the bottom appears, the price, less the deposit, leaving a balance to be paid on delivery. The estimated price for the fitting taken from the "Fitters' suggested costings" appears as "Fitting Price"- and in minute type "The fitting price is to be invoiced by and payable to the fitter on completion".

  14. The bottom of the plan states:

  15. The drawing is the order – only goods and accessories specified on the drawing and schedule will be supplied.

  16. Dimensions of units are approximate and may be altered at the discretion of the Factory unless otherwise specified on the drawing.

  17. Fitting amount is invoiced by and payable to your fitter

  18. There will be a joint in any length of plinth over 2.4 m

  19. There will be a joint in any length of worktop over 2.4m unless otherwise specified on the drawing

  20. The goods remain the property of Fineline Bedrooms & Kitchens Limited until paid for in full

  21. The customer is asked by the Appellant to sign the "terms and conditions" These are on a printed sheet headed with the company's name and address. The design of the form is very like the Fitters' suggested costings document. The customers name address and home phone number appear at the top, underneath is a section headed "Terms and Conditions".

  22. Only goods and accessories specified in the acknowledgement have been included in the price below.

  23. Following technical survey, alterations may be required. If this is necessary, a new acknowledgement will be supplied.

  24. Fitting amount is invoiced and payable to your fitter. Please note that the recommended installers are not employed by Fineline Bedrooms and Kitchens Ltd.

  25. The goods remain the property of Fineline Bedrooms & Kitchens Ltd until paid for in full.

  26. The deposit paid is none refundable. In the event of cancellation of the kitchen following survey; the full contract will be due and payable.

  27. When paying your balance; acceptable methods of payment are as follows:

  28. Cash

  29. Banker's Draft

  30. Building Society Cheque

  31. Debit/credit card (Please note; a charge of 1.55 will be made for card transactions).

    32. There then appears the price less the deposit leaving the balance and the fitting price extrapolated from the "Fitters' suggested costings". The form is signed and dated.

  32. If the customer wishes to proceed having considered the plans and design, the "fitters' suggested costings" and the Terms and Conditions then the customer will sign and date all three documents and pay the deposit.

  33. The Appellant had stopped fitting the furniture by the time of the assessments. We were told by Mr Jackson that the designers/ staff were told to tell the customers that the Appellant no longer fitted the furniture, but that they could supply them with a name of a fitter unless the customer wished to make his or her own arrangements. Mr Jackson produced a laminated sign to the tribunal which stated:-

    34. "NOTICE
    Fineline Bedrooms & Kitchens Ltd DO NOT install bedrooms and kitchens.
    However we will be happy to recommend a fitter if required."
  34. He indicated that a similar sign had been in the designer's office at Nelson and Milnrow but not at Chatterton. It was unclear where the sign was displayed in the office. The accounts to 31 December 1999 and 2000 show that the costs for the subcontractors were £16,650 and £9,590 respectively. The accounts for 31 December 2001 revealed no such charge. We are satisfied that the Appellant had ceased to use either their own employees or sub-contractors, controlled by them, by the time of the assessments. Whether customers actually saw the signs referring to the fitting of the furniture is debatable but we are satisfied that the designers and staff were telling the customers that the Appellant no longer fitted the bedrooms and kitchens.

  35. The Appellant needed to control the delivery dates so that the furniture could be manufactured and delivered on time for the customer.

  36. A few days after the customer had placed the order a letter was sent to him or her thanking them for the order. The letter set out the price deposit and net amount and confirmed that:-

    37. "Your *** furniture will be delivered, and installation will begin the week commencing (the appropriate date). We will contact you nearer the time to confirm the day and method of your payment
    The fitters amount is £* (made payable to your fitter on completion, he will invoice you for this amount)"
  37. There is no contract between the Appellant and the Fitter. The Appellant keeps a list of some 7 or eight fitters whom they have found to be proficient. Their names are retained on a "T Card" system. From time to time they updated the list as a result of being contacted by various fitters. We were told by Mr Jackson that they interview the fitters and inspect some of their work before including them on their list. The Appellant supplies a name to the customers, who would first meet the fitter when he came to fit the furniture. The customer is free to arrange his or her own fitter but we believe that in the majority of cases the customer used the fitter recommended by the Appellant.

  38. Andrew Kenneth Daniels gave evidence under oath. He is a self-employed fitter recommended by the Appellant.. He has been fitting kitchens since 2000. He was normally provided with the designers plan and the "Fitters suggested costings" before he went to see a customer. He would try to negotiate the fitting price with the Customers, but usually he agreed to the estimate, as it was based on the industry's standard prices.

  39. He said that he had fitted a kitchen for Mr Abbiss and Ms Parker. He had attended at the house 3 to 4 weeks before the kitchen was to be fitted. The customers had builders at the site and he had told them that they would have to have the electricity supply moved. This took longer than was expected and the date for the fitting of the kitchen was delayed. He reduced the estimate by £200 as he had not carried out the electrical work. He had also removed the old kitchen and engaged a gas fitter. He charged for these separately, by agreement with the customers, without reference to the Appellants.

  40. The Appellant had expressed concern to all the fitters concerning potential difficulties if damage was done to the furniture during installation or delivery. To avoid the problem the Appellant had drafted a proposed satisfaction note. The note is a printed form which we believe had subsequently been photocopied by the Fitters.- Mr Daniels included. We are satisfied that the form was designed and initially printed by the Appellant. It would appear that the satisfaction note was not much used. It bears the name of the installer and the customers name and address. It then has a space for comments. The one we were shown merely stated "Excellent". It was signed by the customer and bore the legend at the bottom: "Installation work carries a 12 month guarantee by the installer". Mr Daniels told us that he did not use it much, if at all.

  41. Trevor Keith Joiner gave evidence under oath. He had purchased furniture from the Appellant on several occasions from 1996. In 1996 the fitters were employed by the Appellant. Mr Joiner appears to have followed the routine set out as above, save that he insisted that he always negotiated the price with the fitter. He stated that "Every one has their price". He had even persuaded the Appellant to reduce their price for the furniture. We have no doubt that Mr Joiner invariable tried to get the best price. As the Appellant's had fitted furniture for him on several occasions he knew the fitters and had appointed them himself. The Appellant had always made him aware in respect of each contract that the fitters were acting independently and Mr Joiner had always agreed with the fitter what work was to be done and the price.

  42. Mrs Lisa Galloway an Officer of HM Revenue and Customs had provided a witness statement which was not contested and she did not therefore give oral evidence. She had raised the assessment of £126,492 on the basis that the customer would see the fitter and the Appellant as one.

  43. From January 2005 Part 7 Electrical Regulations were introduced. This requires an appropriate certificate to be provided by an electrician. As a result the fitters are required to attend on site at a much earlier time to advise on the requirements, to make the appropriate arrangements, and to agree the price. The Part 7 Electrical Regulations required a further fee and this is now negotiated by the fitter. We were told that the standard fitting prices had been increased across the industry to cover the likely costs. The regulations specifically effected the assessments for 31.03.05 and 30.06 05.

    44. Summing up
  44. Nigel Bird submitted on behalf of the Commissioners that al these types of cases are fact sensitive. It is necessary to look at the contract and then decide how the evidence effects it. In this case there is no written contract between the Appellant and the fitters. Mr Jackson's evidence is limited as he did not have face to face contact with his customers and as a result his evidence is to be seen against that background. For the main period of assessment from 12/02 to 12/04 the evidence is:-

    • The Appellant had 7-8 fitters available in any one week.
    • Details of those fitters were kept on "T Cards" which were updated. 2 fitters had telephoned to say they would not be available for a specific period.
    • Details of the fitting work were passed to the fitter. The design plan had further details on the back contained in a column for the customer's instructions which advised the fitter of further work if any. Mr Jackson and Mr Joiner did not accept that that was the case and maintained that there were no further fitting instructions given. The Appellant required the detail to be added when necessary.
    • Details of the work required was passed to the fitters in the "Fitters' suggested costings" prepared by the Appellant. It was very clear that this was work which Mr Daniels would be doing.
  45. The Appellant fixes the price and Mr Joiner was an exception in negotiating the price with the fitters. The fitters arranged for the installation of the furniture if the date(s) were convenient for their work schedule and accepted the price on the "Fitters' suggested costings" because it was based on the industry standard.

  46. The Appellant arranges for the fitter to fit the units. They do not hand a list to the customers and leave them to make their own arrangements. The Appellant arranges the installation date and until the Part 7 Regulations the fitters usually only attended at the premises when the furniture is delivered.

  47. The customer entered into a series of agreements and anticipated that the price would be inclusive of the fitter's price as fixed by the Appellant.

  48. The satisfaction note is pre-printed by the Appellant which was designed to prevent problems on completion if there were complaints. There is no concrete evidence as to the position of the Notice stating that the Appellant does not fit the furniture.

  49. It is no answer for Mr Jackson to state that the Appellant no longer uses the web site when the advertisement in the paper in September 2005 clearly makes reference to it. The Web site and the pamphlets clearly indicate that the Appellant installs the furniture.

  50. Apart from the Part 7 Regulations, Mr Daniels and Mr Joiner indicated that there was no perceptible difference over the period of the assessment in the way the Appellant supplies the furniture.

  51. Each of the cases has to be considered on their facts but the following points drawn from previous decisions are of assistance:

    • Payment to the fitter is not determinative Lewis Carpets.
    • The fact the fitter "is not employed" by the Appellant is not determinative. M & S Interiors Limited (para 60-61).
    • An inability on the part of the customer to negotiate the fitting price with the fitter points to a supply by the Appellant Lewis Carpets (para 49).
    • The negotiations of extras with the fitter would give rise to a separate contract and are not determinative Lewis Carpets (para 51).
    • The fact that fitters are solely responsible for remedial work is not determinative particularly where the Appellant recommends the fitter. Lewis Carpets (para 49) and where from time to time complaints about fitting are addressed to the Appellant.
    • In the circumstances the appeal should be dismissed.
  52. Jonathan Cannan also submitted that what is supplied and by whom for Vat purposes is fact-sensitive. The correct approach has been decided in Kieran Mullen Ltd v Customs and Excise Commissioners [2003] EWCH 4 (Ch) which concerned the supplies made by self employed hair stylists. Park J held that the answer to the question of who was making the supply lay in the contractual relationship between the stylist and the salon. Evans Lombe J followed Park J's conclusions in Ringside Refreshments v Customs and Excise Commissioners [2003] EWCH 3043 (Ch.) The question in that case was whether kiosk operators supplied food to customers on a principal to principal basis or as agents for the outlet owner. That case also turned on the contractual relationship between Ringside and the operators. In this case there is no written contract between the Appellant and the fitters. The fitters do not rely on any facility provided by Fine line. There is a mutual arrangement whereby each recommends the other but that does not amount to a contractual relationship.

  53. It is submitted that there is a contract between the customers and the fitters. Particularly:

    • The price is not fixed until confirmed by the fitter following a visit. At that time there is an offer and acceptance creating a legal relationship with certainty of terms and conditions.
    • At that time the parties are clearly identified.
    • There can be no doubt that the customers understand that the fitter will invoice for the work; make good any damage; negotiate any extras or reductions; and give a twelve month guarantee.
    • Nigel Bird has accepted that there is a contract between the fitters and the customers for any additional work not included in the original estimate.
  54. The Commissioners are effectively seeking to imply a contract to fit the furniture between the Appellant and both the fitters (a subcontract) and the customers. Contracts will not be implied, save as a matter of necessity (see Chitty on Contract 29 edition para 1-066). There is no necessity here where the relationship between the fitters and the customers bears all the hallmarks of contract.

  55. The absence of any contract between the Appellant and the fitters is fatal to the Commissioners case. Any supply by the fitters must be by reference to a contractual arrangement.. The relationship between the fitters and the customers is susceptible to analysis from the point of view of the customer.

    • The customer is told that the fitter is not employed by the Appellant and that the fitter will invoice for the cost of the fitting;
    • There is a clear negotiation between the fitters and the customers as to the price to be paid.
    • The fitter and not the Appellant gives an express guarantee for the installation work
    • Issues over payment and the quality of the work are not the responsibility of the Appellant
    • The position since November 2004, when the Appellant ceased to be involved in the estimation of costs, is even clearer.
  56. There is no reason to depart from the apparent contractual position. There is no evidence that the parties have conducted themselves in a way that could be considered inconsistent with the contractual position.

  57. In the circumstances it is considered that the appeal should be allowed. In the event that the tribunal considers it should not then he submitted that the position after November was different in any event and that part of the appeal should be allowed.

    58. The decision
  58. Having considered the facts and the law we have come to the decision that the fitters supply the fitting service to the Customers and not to the Appellant.

  59. Park J in Kieran Mullen Ltd v Customs and Excise Commissioners [2003] EWCH 4 (Ch) states:

    60. "So the critical question is: what was the relationship between the self-employed stylists and KML? In my view the starting point, and sometimes the finishing point as well, in answering a question of that nature is to analyse the contractual terms which operate between the parties …
    I accept that the matter is not automatically concluded just by considering the apparent contractual position. It is necessary to examine what the evidence shows, and to ask whether the evidence requires a departure from what would otherwise be the result of the apparent contractual position."
  60. The critical question, with which we are faced, is what is the contractual relationship between the fitters and the Appellant on the one hand and the Fitters and the customers on the other.

  61. The Appellant's position with regard to the kitchen units is clearly identified in the various documents, but the position is unclear as far as the fitters are concerned. The plan produced by the designer clearly identifies, on a bespoke basis, the number and type of units, electronic equipment or otherwise, and any peculiarities at the site which require special attention.

  62. The Appellant is anxious to give its customers an indication of the likely costs of having the units fitted, without this information they might well be at risk of losing a sale. The costings they use appear to be an amount that most of the fitters accept, because it is the industry standard. We believe in the majority of cases it would therefore be the price that a fitter would have quoted if the customer had asked him directly. The Appellant's documentation is far from clear as to the definition of the suggested fitting costs (nor the actual amount involved):

    • In the "fitters suggested costing" the price is clearly no more than an estimate.
    • On the plan the fitting price is referred to as a "fitting price" in the column and as "fitting amount" in the terms and conditions at the bottom of that page.
    • It is referred to as the "fitting amount" in the Terms and Conditions document which state that it is invoiced and payable to the fitter
    • It is referred to as the "fitter's amount" in the letter confirming the transaction

    Although the terminology relating to the cost of fitting the units varies the figure quoted remains constant throughout the documentation. The costing appear initially as an estimate and that is what we believe it to be. In spite of the evidence from Mr Joiner we consider that the vast majority of the Appellant's customers are unlikely to negotiate a reduction in the fitting price. It is, however, open to them to do so, as Mr Joiner so admirably demonstrated.

  63. What then is the contractual arrangement between the Appellant and the fitter? The answer is none. The evidence identified that the Appellant kept a list of 7 to 8 fitters, who it believed would fit its products to a high standard. Not surprisingly, fitters, who were glad to receive recommendations from the Appellant, sometimes made contact to say when they were not available. The Appellant sensibly kept a T Card index of that detail. This did not create a contractual relationship between the Appellant and the fitters.

  64. Nigel Bird made much of the fact that the Appellant did not give the list of fitters to its customers and tell them to make their own arrangements. If the Appellant had done so, we assume, Nigel Bird would accept that the fitters were not contractually bound to the Appellant. If the Appellant had given the list to its customers and told them to make their own arrangements, we are struggling to see what difference it would have made. Presumably that fitter would have had to contact the Appellant to obtain the plan; find out when the units would be ready and make arrangements to collect them. He might have been asked to quote a price by the customer when he was first contacted. We suspect he would have answered that he would need to see the plans before he was in a position to give a price.

  65. Nor are we concerned with the advertising. We accept that the pamphlets may be used to give an idea of the Appellant's business, as did the web site. We are satisfied that the Appellant made it clear throughout the assessment periods that they did not fit (install) the units. In any event the evidence from Mr Jackson revealed the internet accounted for 1% of its customers and advertising for 6% which is a very small proportion of the Appellant's business.

  66. We consider that the satisfaction note, which was undoubtedly prepared by the Appellant, was an attempt on the part of the Appellant to distance itself from liability for the fitting work. Mr Jackson said that the satisfaction note had been introduced so that the customers would know whether a complaint should be raised against the Appellant or the fitter. It clearly states that the fitter gives a 12 month guarantee to the customer. That is what we would expect where the contract to fit the units is between the fitters and the customers.

  67. We are told that after November 2004 it was not possible for the Appellant to give an estimate of the cost of fitting the units because the Appellant was not qualified to give the Part 7 Regulation Certificate. Mr Daniels told us that the fitters had increased their prices to accommodate the regulations, which indicates that there is an industrial standard. He also said that that taking account of the regulations there was no difference in the way that the fitting is done.

  68. What of the cases we have been referred to by Nigel Bird. As both counsel have submitted these cases are fact-sensitive and the facts from other tribunal cases do not necessarily help. The assistance that the three case do provide is confirmation of Park J's proposition that an analysis of the contract between the parties is paramount.

  69. 18756:J M Ledger & C E Ledger trading as Lewis Carpets was decided on the basis that the cost of fitting the carpet was included in the contract between the customer and that company. The Company provided the fitters and their replacements. They also required the fitters to fit more than one carpet each day. There was clearly a contract between that company and the fitters.

  70. 17494: I. Michael Wilson trading as A M & S Interiors; 2. Michael Wilson and Stuart Wilson T/A A M & S Interiors; M & S Interiors Limited; M & S Interiors advertised an expert fitting service, their contract being for a fixed price. The only apparent influence on our appeal lies in the fact that the Appellant has called a customer and a fitter to give evidence, something which was lacking in M & S Interiors.

  71. 1293 I & RA Ramsey trading as Kitchen format is perhaps the nearest to this appeal. There was a total price contract: the customer paid the company in full and the company "ring fenced" in a separate account the money for the fitters. The printed contract, however, made reference to the control that the company had over the installation of the units and confirmed that all the terms between the company and the customer were contained in that contract.

  72. In this case there is no contract between the Appellant and the fitters. There is, on the evidence before us, a clear contract between the Fitters and the customers. The contractual terms accepted by a customer when the fitter made arrangements to fit the units created that contract. The evidence before us does not lead us to change our view that the fitters install the units under a contract with the customers and we therefore allow the appeal.

  73. Jonathan Cannan asked that the costs of the appeal should be awarded to the Appellant and we so agree on the basis that the parties agree those costs and if they fail to agree then the question of the costs will be decided by the tribunal but not necessarily the chairman and member for this appeal.

    74. DAVID PORTER
    CHAIRMAN
    Release Date: 23 February 2007
    MAN/05/0781

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