Case Number: TC09802
Appeal reference: TC/2024/01983
VAT – whether the appellant’s supplies of electricity charging for electric vehicles at public charge points are subject to tax at the standard rate, as HMRC argued, or the reduced rate of 5% only, as the appellant argued, under Note 5(g) of Item 1 of Group 1 of Schedule 7A of the Value Added Taxes Act 1994 - appeal allowed in principle
Judgment date: 26 February 2026
Before
TRIBUNAL JUDGE HARRIET MORGAN
Between
CHARGE MY STREET LIMITED
Appellant
and
THE COMMISSIONERS FOR HIS MAJESTY’S REVENUE AND CUSTOMS
Respondents
Representation:
For the Appellant: Mr Sarabjit Singh KC, of counsel, instructed by Deloitte LLP
For the Respondents: Mr Michael Ripley and Ms Susanna Breslin, of counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs (“HMRC”)
DECISION
Part A - Overview
This appeal concerns the rate of value added tax (“VAT”) applicable to the appellant’s supplies of electric vehicle (“EV”) charging to electric vehicles (“EVs”) at charging stations (“CPs”) in public places in the North of England, which were installed and operated by the appellant (“the supplies”). The appellant considers that VAT is due on the supplies at the reduced rate of 5% which applies to supplies of fuel and power for “domestic use” and supplies which are deemed to be for “domestic use”. HMRC considers that VAT is due on the supplies at the standard rate.
The background to the appeal is, in summary, as follows:
The reduced rate of VAT applies to “any supply that is of a description for the time being specified in Schedule 7A” (see s 29A(1)(a) of the Value Added Taxes Act 1994 (“VATA”)). The appellant’s view is that the supplies fall within Note 5(g) of Item 1 of Group 1 of Schedule 7A VATA (“Note 5g”):
Group 1 is headed “Supplies of domestic fuel or power” and Item 1 describes certain supplies for qualifying use of various types of fuel and power including in (e): “electricity, heat or air-conditioning”.
Note 3 to Group 1 is headed “Meaning of “qualifying use”” and states that “In this Group “qualifying use” means - (a) domestic use; or (b) …..”
Note 5 of Group 1 deems certain supplies, including certain supplies of electricity, to be for “domestic use” as follows:
“For the purposes of this Group the following supplies are always for domestic use -
(a) a supply of not more than one tonne of coal or coke held out for sale as domestic fuel;
(b) a supply of wood, peat or charcoal not intended for sale by the recipient;
(c) a supply to a person at any premises of piped gas (that is, gas within item 1(b), or petroleum gas in a gaseous state, provided through pipes) where the gas (together with any other piped gas provided to him at the premises by the same supplier) was not provided at a rate exceeding 150 therms a month or, if the supplier charges for the gas by reference to the number of kilowatt hours supplied, 4397 kilowatt hours a month;
(d) a supply of petroleum gas in a liquid state where the gas is supplied in cylinders the net weight of each of which is less than 50 kilogrammes and either the number of cylinders supplied is 20 or fewer or the gas is not intended for sale by the recipient;
(e) a supply of petroleum gas in a liquid state, otherwise than in cylinders, to a person at any premises at which he is not able to store more than two tonnes of such gas;
(f) a supply of not more than 2,300 litres of fuel oil, gas oil or kerosene;
(g) a supply of electricity to a person at any premises where the electricity (together with any other electricity provided to him at the premises by the same supplier) was not provided at a rate exceeding 1000 kilowatt hours a month.” (Emphasis added.)
Note 6 sets out “Other supplies that are for domestic use”, and provides that:
“For the purposes of this Group supplies not within paragraph 5 are for domestic use if and only if the goods supplied are for use in–
(a) a building, or part of a building, that consists of a dwelling or number of dwellings;
(b) a building, or part of a building, used for a relevant residential purpose;
(c) self-catering holiday accommodation;
(d) a caravan; or
(e) a houseboat”
On 9 September 2023, HMRC processed the appellant’s claim that it had overpaid VAT on the supplies (as it has originally accounted for VAT at the standard rate) and credited the appellant for the VAT which it claimed to have overpaid.
On 6 October 2023, the appellant submitted a request to HMRC for a ruling on the VAT liability of its supplies. On 14 February 2024, HMRC ruled that the standard rate of VAT applies to the supplies. On 5 March 2024, the appellant appealed against that decision.
On 6 June 2024, HMRC raised an assessment in which they sought to claw back the sum which they now consider they wrongly credited in respect of the claim made by the appellant. In the letter giving notice of the assessment, HMRC said this:
“HMRC guidance is clear from paragraph 3.2.2 in VAT notice 701/19 that the recharging of electric vehicles using public charging points is always standard rate because supplies are made at various places and not to a person’s house or building. Because of this the supplies made do not meet the de minimis provision and these supplies are not deemed to be for domestic use and therefore are standard rate supplies.
Below I include the relevant part of VAT notice 701/19
Domestic use
Supplies for domestic use
Supplies of fuel and power for genuine domestic use are eligible for the reduced rate. The provider must be certain that the supply is to a dwelling or certain types of residential accommodation. Examples of allowed residential accommodation are:
armed forces
residential accommodation
caravans
children’s home
homes providing care for the elderly or disabled, people with a past or present dependence on alcohol or drugs or people with a past or present mental disorder
houseboats
houses, flats or other dwellings
hospices
institutions that are the sole or main residence of at least 90% of their residents
monasteries, nunneries and similar religious communities
school and university residential accommodation for students or pupils
self catering holiday accommodation
The following are treated as part of the same residential unit:
buildings such as garages used with houses
subsidiary buildings situated a short distance away, such as a garage in a block located away from a house
corridors, lifts, hallways and stairways in a residential unit
The following are not considered residential accommodation for the purposes of fuel and power:
hospitals
prisons or similar establishments
hotels, inns or similar establishments
Supplies deemed to be for domestic use
Supplies of certain small quantities of fuel and power, known as de minimis, are always treated as being made for domestic use, even when the supply is to a business customer. These limits are explained in sections 4 (gases), 5 (electricity), 6 (oils), and 7 (solid fuels). Supplies within the limits should be taxed at the reduced rate. You do not need a certificate to apply the reduced rate to such supplies (read paragraph 3.5).
The recharging of electric vehicles, when using public charging points is always treated as standard rated for VAT. This is because these supplies are made at various places such as car parks, petrol stations and on-street parking, not to a person’s house or building.
In addition, these supplies are not usually an ongoing supply to one person where the rate of supply can be calculated.
Based upon this I conclude that the correct liability for the supplies in question are standard rate.
I also note that the VAT written clearance team wrote to you on 14 February 2024 with the same findings.”
On 24 June 2024, the appellant appealed against that assessment.
In summary, the parties disagree on the meaning of the words in Note 5(g):
The appellant’s view is that, on the correct interpretation of Note 5(g) its requirements are met: (a) the supplies are supplies of electricity by the appellant, as a charge point operator (“CPO”), from its CPs, (b) each supply made by the appellant is made “to a person”, the driver, (c) the supplies are made at its CPs in public places, and so are made “at any premises”, and (d) the supplies made to a single driver at the same premises (the relevant CP) in a single month do not exceed 1,000 kWh such that they are not provided at “a rate” exceeding 1000 kilowatt hours a month. This is demonstrated by the appellant’s pricing structure which defines a “heavy user” as a customer for whom 200kWh would likely be sufficient in a month. That would enable the customer to drive around 170-180 miles per week. The appellant’s analysis also leads to a fiscally neutral result, as private individuals purchasing electricity to charge their EVs are taxed at the same rate whether they purchase electricity via provision to their home or via provision to where their EV is located. In either case, the supply is of the same goods (electricity) to the same person (the customer) for the same purpose (charging the customer’s EV). This reinforces the appellant’s view that its analysis is correct.
In HMRC’s view, the supplies do not satisfy the requirements to fall in Note 5(g) for the following main reasons:
The supplies are not supplied “to a person at any premises”. This requires that supplies are made to premises, in the form of a building, which are the premises of the recipient of the supplies. The supplies are not made to the recipient’s premises, as they are made in public places, and in some cases are not made to any premises at all as they are made at locations, such as car parks, which do not comprise a building and/or are not within the curtilage of a building.
It is not correct, as is the effect of the appellant’s approach, to equate “the rate” at which supplies of electricity are made with the quantity of electricity supplied during a whole month. Rather, the rate at which supplies are made must be measured over the period during which the relevant supply actually takes place. In relation to “ad hoc” supplies such as those made by the appellant, the rate must be measured over the short period of, at most, a day during which each supply takes place. The rate applicable to a period of one day is 33 kWh (being 1,000 kWh applicable to a whole month divided by the days in the month). It is common ground that, if that interpretation is correct, this “threshold requirement” is not met.
HMRC do not accept the appellant’s points on fiscal neutrality as set out below.
There is a further dispute as to whom the appellant makes the supplies to which is relevant if the appellant’s interpretation of Note 5(g) is held to be correct. The appellant contends that all of the supplies are made to the driver and, on that basis, on its interpretation of Note 5(g), all of the supplies are plainly below the 1,000 kWh of electricity a month threshold. In HMRC’s view, however, (a) in many instances the appellant makes its supplies to a third party (as set out below) which then make onward supplies of the charging services to the end user, the driver, and (b) on that basis, those supplies plainly exceed the 1000 kWh threshold.
Part B - Facts and Evidence
I heard evidence for the appellant from Mr Heery and Mr Maden whose roles are described below. I found them both to be credible and honest witnesses and there was no suggestion to the contrary from HMRC.
Mr Heery is one of the founding directors of the appellant and worked for the business since it was established in January 2018. He has more than 20 years’ experience of funding and delivering projects focused on communities. He said that (1) from the start, he played a key role in the overall management of the appellant. Initially his role involved supporting the board of directors, liaising with suppliers, overseeing installation of EV charge points and managing finances. However, with the appellant’s growth, the board of directors have assumed greater responsibility for technical aspects, customer support, and finance, allowing him to focus primarily on strategic business development, (2) he continues to lead on strategic business development for the appellant, and (3) given his role he considers he possesses both detailed operational and strategic knowledge of the appellant’s business, coupled with extensive understanding of the UK electric vehicle charging network.
Mr Maden said that:
He is one of the founding directors of the appellant and worked for the business since it was established in January 2018. The appellant is the UK’s first community-owned electric vehicle CPO addressing under-served markets, including rural areas and residents without private parking. In his current role, he is responsible for making sure that software and hardware operates correctly.
He is recognised as a leading voice in “Vehicle-to-Everything (V2X)” technology. He is regularly invited to speak at influential industry and public-facing events, including those organised by Innovate UK (part of UK Research and Innovation, which is a non-departmental public body sponsored by the Department for Science, Innovation and Technology). He also has over 15 years’ experience operating as a consultant specialising in logistics and transportation.
He co-owns Fuuse Limited (“Fuuse”), a consultancy and software development firm which works with data to solve business challenges. This involves creating algorithms and using machine learning and AI to create operational efficiencies, improve planning and modelling, and deliver strategic change. He co-founded Fuuse in 2016 and was its chief operating officer until May 2025.
Fuuse is the UK’s largest independent EV CP management software business. Fuuse offers software services to CPOs, including the appellant and Be.EV, FOR EV, Scottish Power Recharge, evpoint, and EV on the Move. Fuuse’s services include CP management, billing, maintenance, roaming, smart charging and energy management. It is a market leader in the software services it provides. Fuuse’s CP management system was the first in the UK to be “dual-certified” under the “Open Charge Point Protocol”.
Fuuse itself is not a CPO. It does not own or lease EV charging infrastructure, and does not buy in electricity from landlords, CPOs or energy companies (save for the electricity it buys for the purpose of its offices). Fuuse’s role is to provide software that helps CPOs and other businesses in the EV charging sector
The businesses of Fuuse and the appellant both originated from the same research. The appellant was successful in receiving a grant through Innovate UK for scaling off-street EV charging infrastructure, and those research projects enable persons to develop an offering in partnership with others. That was how the appellant and Fuuse were developed alongside each other, and why it was natural for the appellant to be Fuuse’s first customer for software services.
The evidence given by Mr Heery and Mr Maden as regards EV charging and the operation of the appellant’s business is as follows:
EV charging is the process of recharging the battery of an EV with electricity. For an EV to receive electricity, an EV charger is needed. EV chargers are specialist devices which take electricity and convert it into a form that is compatible with EV batteries. The availability of EV chargers has grown rapidly in the last decade as government policies have encouraged the switch to EVs. There are significant public benefits to the use of EVs rather than petrol/diesel vehicles, such as reduced carbon emissions and improved air quality.
EVs can be charged at a user’s home, using an EV charger installed at that home, in which case the electricity is supplied by that user’s domestic electricity provider. However, for users who do not have off-street parking at home and so cannot charge their EV at home, and for users who need to charge when away from home, public CPs are essential. Such CPs are increasingly available and are used in return for payment. A CP consists of hardware containing an EV charger, and an adjacent parking space for the EV to be stationed while charging. The EV is charged via a connector cable (provided by the driver) from the EV’s charging port to the CP.
Public CPs offer convenience, environmental benefits, and cost savings: (a) They often offer faster charging speeds than home chargers, making long trips and commutes easier for EV drivers, (b) they contribute to a cleaner environment by reducing tailpipe emissions and promoting the use of renewable energy, and (c) they provide a vital charging solution for the approximately 40% of homes in the UK who do not have off-street parking.
The appellant aims to reduce emissions and improve air quality in the UK by encouraging more people to use EVs. Its activities are focused on rural areas, and areas in which there are significant numbers of homes without driveways or off-street parking, particularly terraced housing and flats. The appellant works with residents who want to get a CP at a location near to where they live to facilitate the use of EVs. The appellant also works with owners of sites interested in having communal CPs for the benefit of the local community.
The appellant aims to put CPs within a maximum five minutes’ walk of someone’s home and targets people who otherwise would not have access to an EV charging solution. The appellant installed its first two CPs in Lancaster due to the appellant’s directors living there, as did other individuals who engaged with the appellant’s project at that initial stage. The appellant looks to solve the problem for communities where there are no, or very few, public CPs. The appellant launched its website enabling individuals to suggest where an EV charger should be installed, aiming to create engagement with individuals and communities who had been neglected by other CPO businesses. The appellant has now grown beyond the Northwest of England and has CPs in various parts of the UK, the significant majority of which are in the North of England. The appellant is currently focused on installing charge points in Cumbria. This is an area where many houses are without off-street parking and where community locations are more readily available.
Since its establishment in January 2018, the appellant’s network has grown to over 100 sites operating more than 200 CPs, reflecting community needs, travel patterns, and local government partnerships. The public places in which CPs are installed include (a) residential developments to provide communal EV charging facilities; (b) parish council car parks; (c) pub and hotel car parks; (d) village hall and church car parks; and (e) school and college car parks. There are now about 105 sites. Part of Mr Heery’s role is to maximise the number of sites. Growth is driven by the increase in the number of EVs on the road and the planned phasing out of petrol cars by 2030. Generally, the sites are in a car park, they are not just roadside, and they may or may not be near/within the curtilage of a building.
The appellant does not own any of the sites where its CPs are installed. The appellant engages with site owners/landlords and tenants to obtain the necessary rights over the premises where the CPs are to be installed. The appellant then installs CPs at those premises with no upfront cost to the site owner and, where possible, minimises operating expenses by using existing electricity supplies (which also reduces carbon emissions). The appellant monitors usage of electricity at each CP and generates profits from making a small margin on its supplies. The appellant manages the risk across its diverse portfolio, as some sites perform better than others. The appellant installs “fast” CPs ranging from 7 to 22kWh, which is faster than a home charger. These are typically used for three to four hours by people who live nearby and lack access to off-street parking or do not have access to a home charger (for example, they live in rented accommodation and are unable to have a home CP installed) and tend to be used for charging domestic vehicles. Sites typically begin with two CPs on them. The appellant monitors usage to determine the need for more CPs on the site (up to a maximum of ten CPs at a site).
The appellant uses state-of-the-art EV charging equipment and keeps a record of how much electricity has been used by the driver. The electricity may be provided by the site owner using their own electricity supply or by a separate energy provider. The electricity supplier either invoices the appellant directly for the supply of electricity at each CP or invoices the landlord for its supply to the landlord at the landlord’s premises, and the landlord then invoices the appellant for the relevant part that relates to the CP.
Mr Maden said that (1) he had noted the inequality between EV charging at home and in public. Domestic car users who do not have off-street parking and so cannot access EV charging from their home are, in effect, penalised financially, making it more difficult for them to transition to an electric car, (2) using their home electricity supply, EV drivers can get energy for approximately 7p per kWh and incur VAT at a rate of 5%. In public, rapid EV CPs in some cases charge 80p or more per kWh and are subject to VAT at 20% according to HMRC, (3) although it is not necessarily always the case that wealthier people always have off-street parking at home, it is more likely given that the larger a home, the more likely it is that it will have off-street parking, thereby enabling EV charging from the home electricity supply, and (4) essentially, this inequality could mean that the transition to EVs will be paid for by people who can least afford it. Given the appellant’s status and aims as a community benefit society, this is completely at odds with what the appellant believes in.
The business plan for the appellant for the period from January 2021 to December 2021 sets out the “Key learning points from our experiences so far” as follows:
“● There is a big role to educate people before they buy an EV (charging, range, costs) and after (where to charge, how to charge, types of charge points etc.
● Demand builds slowly as residents want to see a charge point available before buying an electric car.
● Agreeing contracts with site owners is time consuming as there are often multiple parties that need to be consulted.
● There is a high rate of attrition with sites - 22 sites which are possible but unlikely to go ahead took 22 days to survey. 29 sites which have been discounted took 15 days to survey. Sites sometimes withdraw late in the process when surveys have been conducted and quotations obtained.
These issues are being addressed in part by working with Cumbria Action for Sustainability (www.cafs.org.uk) to engage communities and to increase awareness. This has involved reaching out to village halls, Housing Associations and renewable energy groups. This share offer builds an investment pot to finance new charge points and carry out development work on the pipeline of new sites for installation.”
In the business plan, under the heading “track record”, it is stated that:
The charging points are growing in popularity and usage, up to 30/12/21 there were 313 charging sessions at the 12 charge points, delivering a total of 4000kWh of energy to 60 different customers. The management of the installation process has improved, and agreements have been reached with electricity supply companies to speed up the installation of charge points.”
Mr Heery said that the data specified in the business plan is used as typical key performance indicators in the EV charging industry. This metric is relatively easy to capture. He said the number of charging sessions is useful as it shows how popular the site is and how successful it is in engaging drivers. He considered that, to understand how a CP is used, this metric is required as well as knowledge of how many hours a CP is used for.
Mr Maden said that there are the following four main ways in which a customer may locate the appellant’s CPs:
Observation – the appellant’s target customers are located within a five-minute walk of a CP, so customers should notice the CP in their neighbourhood.
The appellant’s “partnered app” (currently Fuuse) – the app has a map of CPs across the UK.
Zapmap – this is a map which aggregates various CPs in the UK.
The appellant’s website – this shows the location of the appellant’s CPs.
Mr Maden explained that signage at each CP indicates various ways a customer may start a charging session. If a site has contactless payment available, the signage has instructions for using the contactless payment system. It also shows the appellant’s partnered app and “QR code” payment methods. He also said that (1) the appellant’s terms and conditions are referred to on the signage at the CP site but are too long to be displayed there. The signage displays a link to where the terms and conditions may be found on the appellant’s website, and (2) for any method of payment other than contactless, a link to the appellant’s terms and conditions is displayed to the customer as part of the customer journey on their smartphone. However, as Mr Heery accepted at the hearing, and as is apparent from the documentary and photographic evidence, (a) whilst there are references to the appellant on the signage at CP sites and on what a customer sees when using the appellant’s partnered app, there is no reference or link specifically to the appellant’s terms and conditions as set out on its website, and (b) the appellant’s terms and conditions are not on the homepage of its website.
Mr Heery and Mr Maden gave evidence that from the start of the operation of the appellant’s business, drivers have been able to pay for supplies of electricity at the appellant’s CPs (1) via “Pay as you go”/ “Pay and Charge”, (2) by subscription, and (3) by using the appellant’s “partnered app”, which was the “EO Charging app” prior to December 2020, and from then, the Fuuse app.
As regards “Pay as you go”/”Pay and Charge”:
A driver uses a smartphone or similar device to scan a QR code printed on a sticker attached to the CP, which takes the driver to a website where he can pay the appellant for the charging session. This is for the occasional user who wants to charge his vehicle on the go, without taking out a subscription with the appellant. The appellant’s software calculates how much electricity has been used and charges the driver immediately, with the cost of the charge deducted from the driver’s credit/debit card.
When a customer uses “Pay & Charge”, the appellant obtains a session ID for the person using the CP, the amount of electricity supplied to them, the time, and the location. Each session has its own unique session ID. The appellant knows the location of the CP used, the amount of electricity supplied, and the price charged to customers. The appellant is unable to identify the customer in these scenarios. The customer is shown a link to the terms and conditions when on the customer journey on the anonymised website, but it is not asked to take any action to accept them (e.g. there is no tick-box).
The screenshots in the bundle show that when using this method using the Fuuse app, the customer sees a page with a tariff or an option to subscribe with a reference to both Fuuse and the appellant but there are no links to any terms and conditions. Mr Heery said that, at the point of payment, customers do not want to spend time looking at this and, whilst legally it would be better for the customers to have to do so, in practice, it is not good from a customer service perspective.
As regards subscriptions:
Mr Heery explained that there are three tiers of subscription that drivers can sign up to with the appellant: basic, standard and premium. A basic user is a driver who uses their EV for shopping and local journeys (who drives roughly 80 miles a week), a premium user is a driver who travels and commutes frequently, and a standard user (who drives roughly 120 miles a week) is somewhere in between a basic and premium user. A subscription requires the driver to pay a monthly fee to the appellant in return for charging at a lower cost per kilowatt hour (“kWh”). The price of the monthly fee varies according to the tier selected: for example, the basic package currently costs £32.50 per month, which allows the driver to charge up to 75kWh per month with subsequent charging at a price of 43p/kWh. The appellant calculates how much electricity has been used and charges the driver via a direct debit according to their tier level. Originally, a subscription was arranged via email or phone, but as the business has evolved, it is now possible for drivers to select a subscription via the appellant’s partnered app, Fuuse.
Mr Maden said that (a) subscriptions reduce the overall cost for customers and are targeted at individuals who are local residents as opposed to, say, tourists, (b) the subscription is a monthly charge which provides an allowance for a certain number of kWh of charging, (c) the contract is rolling, and customers may cancel the contract at any time, (d) now the subscription can only be purchased through the partnered app and is only available to the appellant’s customers, and (e) a subscription user is expected only to make payment via the partnered app.
As regards the Fuuse app:
Mr Maden said that Fuuse’s software services are of three types:
“CPO” software which relates to the operation of the CP. This “talks to” the CP – it communicates with the charger so that it starts and stops charging at the appropriate point.
Electronic mobile service provider software (“EMSP software”). This engages with users when they use their smartphone, their payment card or contactless payment, or the QR code. In essence it consists of the partnered app and also the anonymised website which a driver is taken to when the “Pay and Charge” payment method is used.
CP management software (“CPM software”). This is an internal software platform that sits above the CPO software and the EMSP software and makes sure that both the CPO software and EMSP software are running correctly.
Mr Maden said that this kind of software arrangement is not unique to EV charging but may be seen in, for example, the context of domestic central heating boilers. Modern boilers may have a customer app associated with them (like the EMSP software), which is overseen by the boiler manufacturer. Software by which the boiler is run and operated is analogous to the CPO software referred to above. And the boiler manufacturer has an internal overall platform, which is the equivalent of CPM software, to make sure that the app software and boiler software operate correctly. He said that essentially Fuuse provides the software that makes it all happen. It does not want to be a CPO. Rather it focuses on providing and improving the software needed by a CPO and also is involved in energy management; Fuuse monitors the supplies of electricity as different cars can take kWh at different rates.
He added that some of the appellant’s chargers use a different piece of CPM software run by a company called Hangar 19. However, those chargers still rely on Fuuse for the EMSP software. This is currently in a testing stage as there are particular types of hardware used by the appellant which Fuuse does not support.
Fuuse charges and invoices the appellant (including issuing VAT invoices) for the software services Fuuse supplies to the appellant.
The appellant directs its customers to the Fuuse app via its signage at sites hosting the appellant’s CPs and via advertising on its website. The Fuuse app is also advertised through the Zapmap app. Customers are informed on the signage of how they may download the app and, once installed, a customer can set up a credit or debit card on the app or payment may be initiated via Apple Pay or Google Pay. The Fuuse app is free to download, and to register a customer must provide a means of communication, such as an email address, and verify it. The customer may also provide additional information on the app, for example, their car registration. Customers do not need to enter credit card details as payment may be initiated via Apple Pay or Google Pay.
When the app was created, Fuuse had not completed its “white labelling” processes (whereby Fuuse’s branding does not appear), so the app was left branded as “Fuuse” for simplicity. The app could now be rebranded with the appellant’s branding; however, that would require changes to the signage at potentially every site where the appellant’s CP is located. In any event, the appellant believes customers associate the Fuuse app with the appellant alone. The board of the appellant is currently opposed to using resources for what would be an essentially unnecessary rebrand, as it would make no difference to how the app functions but just to the branding on it. The bundles contain an example of a “white-labelled” version of this software for a different party who Fuuse contracts with, which operates in the same way as the software provided by Fuuse to the appellant.
In order to pay via the partnered app, first time users are required to download the app and sign up to create an account (or sign in, if they already have an account). To create an account, drivers must provide various details, including their credit/debit card details. Once an account is created (or the driver has signed in), the driver then enters the charge point ID to initiate charging, connects their vehicle and selects “start your charging session” in the app. The app displays the charging process and automatically handles payment at the end of the session. Prior to December 2020, EO Charging collected payments from drivers on the appellant’s behalf and passed those amounts (minus a handling fee) to the appellant every 6 months. Since December 2020, when drivers have used the Fuuse app, payments from drivers have been processed by a third-party payment processing company, Stripe, with whom the appellant has an account, and passed directly to the appellant.
When making payment via the QR code, customers start by scanning the QR code shown on the signage at a CP. That will take them to an anonymised website controlled by Fuuse, which can specifically identify the connector that the customer is using. As some CPs have more than one socket or cable for the purposes of charging a vehicle, the term “connector” is used to refer to the specific cable or socket which a customer is using. The website uses a version of Fuuse’s secure payment service software. The customer is then able to make a one-off payment by entering their credit card details on the website.
Mr Maden said that:
Fuuse and the appellant always intended that a customer who registers through the Fuuse app is signing up as the appellant’s customer, and his experience is that the customers associate the Fuuse app as the one that is used at the appellant’s CPs. However, in the process of preparing his witness statement, he has noted that the terms and conditions on the Fuuse app indicate that it is Fuuse who supplies the EV charging to the customer. In his view that is not correct, as it should state that the appellant supplies the EV charging to the customer.
Another customer of Fuuse, Be.EV which uses a “white-labelled” version of the Fuuse app (essentially the same app but just branded for Be.EV) also uses the same terms and conditions but in that case they state correctly that Be.EV supplies EV charging to its customers.
He believes that the terms and conditions on the Fuuse app erroneously say that Fuuse, rather than the appellant, supplies EV charging because when Fuuse was developing the app, the appellant was its first customer. His recollection is that the terms and conditions were not drafted by a lawyer, as they were (and remain) a small business with no in-house legal team and they would only involve external lawyers where they regarded it as absolutely critical, simply due to lack of budget: instead, the terms and conditions were created by their chief financial officer based on examples from the internet. Had the appellant later decided that they wanted the app “white-labelled” (once Fuuse had the ability to do “white-labelling”), his expectation is that they would have followed the same process that Fuuse did for Be.EV, by making sure that all screens and content referred to the appellant. As “white-labelling” did not happen, that is likely to be why the Fuuse app terms and conditions were not changed to refer to the appellant. There is evidence that Fuuse has made similar mistakes in other terms and conditions. He exhibited examples of such terms and conditions in relation to Fuuse’s relationship with Wattstop network although that network did not proceed and was never near the point of being launched.
Fuuse decided to focus its attention solely on providing software services to third-party CPOs, as that was where it was experiencing most success. It has never been a CPO itself and does not supply EV charging. The one area in which Fuuse has focused on getting its terms and conditions correct and has incurred the expense of getting them drafted by lawyers, is in its actual area of day to-day business, namely the provision of software services to business clients. He exhibited a print of the web page and the detailed terms and conditions.
Mr Maden emphasised that the Fuuse app is not equivalent to the “third-party apps” which the appellant also utilises (see below). Essentially it acts as a software-based payment method, allowing the appellant to contract and interact directly with its customers, including its subscribers. When a customer makes payment via the app, the monies in question are not received by, or held by, or paid on by Fuuse. Instead, the payment is processed by Stripe, a well-known company specialising in payment processing, with whom the appellant has an account, enabling the payment in question to pass straight to the appellant from the customer in question. The Fuuse software has simply enabled the appellant to achieve this. As such, it is entirely different from the various “third-party apps” mentioned below, which collect the payment from the customer themselves, and hold it until the appellant sends the app an invoice asking the app to pay the amount on to the appellant.
Mr Heery also said that Fuuse’s role is confined to providing software services to the appellant. His evidence accords with that of Mr Maden
The evidence is that EV drivers have more recently also been able to pay for supplies of electricity at the appellant’s CPs via the following additional methods:
Contactless payment. This became available from 1 April 2023. It can be used at some of the appellant’s CPs using card readers that are part of those CPs. The driver connects the EV to the CP and taps the credit card on the reader, which leads to the charge session starting. At the end of the session, the driver taps the card on the reader again to stop charging and the software calculates how much is owed, which is then debited from the driver’s credit card to the appellant. If a problem occurs with the charging process, the customer contacts the appellant who handles the enquiry. In instances where it is the software causing the problem, the appellant asks Fuuse to assist in resolving the issue.
Through “third party apps”. This was possible from 1 April 2022. These are third party businesses known as “e-mobility service providers” that, through their apps, increase the appellant’s visibility and provide drivers, who are not the appellant’s subscribers, with an alternative method of paying for supplies of EV charging at the appellant’s CPs. Such apps provide a single point which enable customers to use different business’ CPs including those of the appellants. Allowing “third-party apps” to be used at the appellant’s CPs was a conscious decision aimed at increasing utilisation of the appellant’s CPs so bringing more customers for the appellant. The appellant has agreements with Paua Tech Ltd (“Paua”) that operates the Paua app, Allstar Business Solutions Ltd (“Allstar”) that operates the Allstar app, Bonnet Ltd (“Bonnet”) that operates the Ovo Charge app, Octopus Energy Ltd (“Octopus”) that operates the Electroverse app (formerly known as the Electric Juice app), and Next Green Car Ltd, now known as Zapmap Ltd (“Zapmap”), that operates the Zapmap app. At the hearing Mr Heery likened the arrangements between “the third party apps” and the appellant as like broadband working with Sky. He said that these arrangements enable the appellant to obtain more customers.
The appellant entered into agreements with third party app providers to facilitate the appellant’s supplies of EV charging between June 2021 and December 2022. The agreement with Paua dated 1 June 2021 was the first agreement that was signed.
The main “third-party app” currently used by customers at the appellant’s CPs is the Electroverse app, which is aimed at domestic vehicles. The next most popular “third-party apps” used at its CPs are the Allstar and Paua apps, both of which are usually used by drivers of commercial EVs.
The appellant has contractual arrangements in place with each third party. Under these arrangements, the third party has negotiated a percentage discount on the rate which the appellant charges a typical customer for its supplies, so that the third party pays the appellant at that rate and presumably charges a higher rate to the driver using its app, thus making a margin. The third-party has its own terms and conditions dealing with its transactions with the EV driver using its app. In this situation the payment from the driver does not come directly to the appellant. Instead, the third-party app provider collects the payment from the driver and holds it until the appellant sends the app an invoice for the month, asking the app to pay the aggregate amount due from all users of that app at the appellant’s CPs.
Mr Heery accepted in cross-examination that in these cases the appellant supplies electricity to the “third-party apps” and they supply it on to the customer and invoice the customer accordingly. He said, however, that if the appellant was not involved there would be no supply of electricity to the customer; the appellant facilitates the provision of the service, as the CPO, who controls the required infrastructure albeit that contractually the third-party app is the supplier. He had said earlier in examination in chief that the appellant supplies electricity to customers and, in practice, if there is any problem with the customer it is the appellant who sorts it out. He maintained that the appellant’s terms and conditions do not reflect reality (see below). He said that the “third-party apps” approached the appellant, they were keen to provide services through the appellant’s network in the North West and they provided the contracts which he reviewed but he had no legal background. The main thing for the appellant was seeing how many customers came through as a result of the arrangements with the “third-party apps”.
The vast majority of the appellant’s revenue has come from payments made via the Fuuse app. The percentage of revenue gained from customers who used Fuuse’s app was 96.3% in the period from 1 April 2021 to 31 March 2022, 88.3% in the period from 1 April 2022 to 31 March 2023, and 78.1% in the period from 1 April 2023 to 31 March 2024. In this most recent period 20% of sales came from the “third-party apps”, such that that 98.1% of the total sales value was obtained via Fuuse and the “third-party apps”.
Mr Heery provided a breakdown of the proportion of revenue for a year from 1 April to 31 March received under each payment option referred to above for some of the relevant periods as follows:
2021/22 2022/23 2023/24
Contactless payment 0.5%
Pay & charge 3.5% 3.0% 1.3%
Fuuse app 96.3% 88.3% 78.1%
Third party apps 8.5% 20.0%
Manually started/EO 0.2% 0.1% 0.1%
Total revenue in period (£) £ 5,859.07 £ 39,674.21 £151,973.25
Mr Heery noted the following as regards the breakdown: (1) The final category (“manually started/EO”) is now obsolete. “Manually started” refers to charging sessions started by a staff member of the appellant. “EO” refers to a short-lived payment solution provided by the manufacturer of the CP hardware, EO, (2) contactless payment only became available at the appellant’s CPs in the 2023/24 year. The proportion of customers using contactless payment has already increased to material proportions since 31 March 2024 (the end of the period in the final column) and so will become an important source of revenue for the appellant going forward, and (3) whilst the agreements with third-party app providers were finalised between 2021 and 2022, the ability for customers to use third-party apps at the appellant’s CPs only began in the 2022/23 year. There was a gap between the contracts being finalised and the customers having the ability to use the apps because there were issues integrating the third-party providers software with the Fuuse software.
To illustrate how the appellant deals with customers, Mr Heery referred to four sites that have been in operation from 1 October 2020 to 31 March 2023. Two sites were chosen by the appellant and two were chosen by HMRC.
Lancaster Boys and Girls Club (“LBGC”):
The appellant obtained rights over the relevant part of the premises by entering an agreement with the landlord, LBGC. As one of the first wave of sites, the rental of the part of the site was documented in a partnership agreement with LBGC, which was the form of document that was used at the start. The agreement was for a three-year period starting on 30 June 2018, renewable annually thereafter subject to termination after the initial 3 years. Mr Heery said there is a good relationship between the parties and the arrangements are on-going. He added that in later contracts they had tried to include provisions to mitigate the risks regarding termination.
There are two CPs at this site which appear to be within the curtilage of the building. Photographs taken by Mr Maden on 2 May 2025 show the location of, and wording on, the signage at this location. The photographs show that the signage (a green circle) is headed with the appellant’s “Chargemystreet” logo but customers are directed merely to scan a QR code or to use the Fuuse app or to go to the Fuuse website. At the hearing Mr Heery agreed that this signage directed customers only to the Fuuse app or the Fuuse website and not to the appellant’s website and/or its terms and conditions and that they are not on its homepage. He noted that this was one of the appellant’s first sites. He did not consider the appellant’s terms and conditions were very important at this stage but with hindsight he should have. He accepted, in effect, that drivers using the appellant’s CPs were not alerted to the appellant’s terms and conditions but that they were directed to Fuuse’s terms and conditions. He said the driver might look up the appellant if, for example, the driver is interested in the pricing.
LBGC had an existing electricity supplier, so the appellant minimised operating expenses by using that supply. LBGC charges the appellant for that electricity (as shown in invoices in the documents produced to the tribunal). The electricity supplier, Scottish Power reads the meter, informs LBGC, who subsequently invoices the appellant for the number of kWh used for the period (every three months). Separate meters are used to track the usage of the charge points.
Where a customer has paid for the supplies at this location using “pay and charge” their credit card is debited for the cost of the charge by the Fuuse back-office system. The appellant obtains a session ID for the person using the CP, the amount of electricity supplied to them and the time and the location. Each session has its own unique session ID so the appellant knows the location of the CP used, the amount of electricity supplied, and the price charged to customers.
Where a customer has paid for the supplies at this location using the Fuuse app, Fuuse invoice the user for usage. As these are business to consumer transactions VAT invoices are not generated. The customer gets a statement at the end of every month. Customers receive receipts of this kind whenever they undertake a charging session via the Fuuse app. The appellant has the ability through Fuuse to access the usage data at this location and can review, for example, monthly usage, by customer, the amount used at each charging session and the total kWh supplied to that customer at that site in the month in question.
Where a customer has paid for the supplies at this location using a “third-party app”, the app provider collects the revenue due. The appellant invoices the app provider for the sessions that have taken place to recover the revenue due to it. The bundles contained examples of the appellant’s invoices to Paua and Octopus issued between 2022 and 2024. On each of these there is a breakdown by site, including this site. If required, the appellant can access data from the “third-party app” provider to check usage, who the customer was, the amount used at each charging session and the total kWh supplied to that customer at that site in the month in question.
The data in the bundles shows that the appellant knows the date and length of each charging session at this location and the amount of electricity used in that session in kWh but not the identity of the driver.
The Boot & Shoe (“B&S”):
The appellant obtained rights over the relevant part of the premises (at spaces in a car park) by entering a lease agreement with the landlord, B&S. There are two CPs at this location which do not appear to be within the curtilage of a building. The appellant’s signage (the green circle with its logo and details of how to use the CP) is the same at each location. Hence, again customers using CPs at this location are not directed to the appellant’s terms and conditions for supplies/use of the CPs. The agreement was for a period of 12 months from 30 October 2018 and thereafter from year to year. It was stated that either party could terminate it on giving three months’ notice before the end of the term and, if no notice was given, it was to be automatically renewed.
Customers can pay for supplies of electricity at this location in the same way as set out in relation to LBGC.
At this site Octopus supplies the electricity to the appellant. Separate meters are used to track the usage of the CPs. The appellant tends to read the meter and send the reading to Octopus – it is not a smart meter at this location. Octopus invoices the appellant monthly for the supplies of electricity at this location (as shown in invoices included in the bundles).
Stanwix Car Park, Carlisle:
The initial CPs at Stanwix Car Park were installed under the “Collaboration Agreement” of the “Innovate UK SOSCI” project. The local government reorganisation, which led to the establishment of the new Cumberland Unitary Authority, has been the focus of the Council’s legal team and the appellant’s tenancy agreement with Cumberland Council is still subject to discussion as a result. There are two CPs at Stanwix Car Park, which Mr Heery accepted is not within the curtilage of any car park. The signage in the photos in the bundles is as at the other sites referred to above. Mr Heery accepted that, as there is no formal tenancy agreement with the Council, this arrangement could be terminated at any time. He said there is a good relationship with the Council and it is low on their list of priorities to agree a formal tenancy but he thought it would be agreed one day.
Customers can pay for supplies of electricity at this location in the same way as set out above in relation to LBGC.
At this site Octopus supplies the electricity to the appellant. Separate meters are used to track the usage of the CPs. The Stanwix car park utilises a “smart meter” and readings come through to the appellant automatically. Occasionally a volunteer does a manual read of the meter, or if a member of the team/engineer is in the area, this may be read by them. Octopus invoices the appellant monthly for the supplies of electricity at this location.
Cedar Road, Lancaster:
The appellant obtained rights over the relevant part of the premises by entering a lease agreement with the landlord, Lancaster City Council. This could be terminated by either party at will. There are two CPs at Cedar Road in a car park.
Customers can pay for supplies of electricity at this location in the same way as set out in relation to LBGC.
Lancaster City Council did not invoice for the supplies at this site during the claim period because the cost of the supplies was approximately £150 and processing the invoice would have been administratively more expensive than the amount owed.
However, no third-party app sessions were recorded during the claim period at Cedar Road so there are no invoices to exhibit.
Mr Heery said that there are different methods of control at the different sites and (1) when the business started, he cobbled the documents and requirements together from how he had operated his previous broadband business. Some sites produced their own documents, he did not know which sites would be successful and, to some extent, he experimented with different approaches, (2) the appellant generally leases the site for a low or nominal sum and pays for and supplies the equipment at each site, (3) the appellant aims to have full control of the site but in some cases that is not possible, and (4) the appellant spends thousands of pounds in installing equipment and so wants each site to be used as much as possible.
In the lease with Lancaster Council it is provided that the appellant’s customers can park their EVs on the relevant site only outside certain designated hours or, within those hours, as long as one charging station remains free for the landlord to use and as long as they are connected to a CP and actively charging. Mr Heery said that, at the start, it was not known how this would work but, in practice, as time went on the appellant’s customers were using these CPs all the time; the position was relaxed and the clause was not enforced.
Mr Heery said that the appellant’s sites at which its CPs are located could be a couple of spaces outside a building or in a carpark not within the curtilage of a building, generally though they are in a designated car park and not just roadside.
It was put to Mr Heery that he cannot tell from the data available to the appellant whether the customer uses the appellant’s CP to charge a vehicle for domestic use or for commercial purposes. He said that he could see that those who subscribed were generally individuals. There are about 50 subscribers. Other customers are probably in the thousands but he does not have that data. Some of the “third-party apps” are used by drivers of commercial vehicles or by business customers. He agreed that the examples of signage at the appellant’s CP sites contained in photos produced at the hearing do not show the appellant’s terms and conditions but refer the driver to Fuuse and that the appellant’s terms and conditions are not on the homepage of its website. He said that in the early days they did not think the terms were so important. He accepted that in the signage customers were directed to Fuuse and its terms and conditions and not to those of the appellant. He said that customers could look at the appellant’s terms and it would depend on whether they were interested in the pricing but he does not think in practice people read them.
The bundles contained a comparison of sums charged for supplies compared with other operators:
“Following discussions with Tesla about experience of similar schemes in the Netherlands, the average prices are a 45p connection fee and 27 p/kWh for electricity.
● Charge My Street sells power at 35 p/kWh to visitors and subscriptions at £20 per month (up to 86kWh then 23p/kWh) or £30 per month (up to 136kWh then 22p/kWh).
● Charges for similar services are:
o char.gy13 (£38.99 per month and 19.5 p/kWh).
o Shell owned Ubitricity14 (£299 for a cable then £7.99 per month and 16.2 p/kWh with a 19p plug in fee).
o Gronn Kontakt 30 p/kW”
It was put to Mr Heery that in a different part of the document containing the above information the appellant’s charge for supplies is referred to as 28 p/kWh. Mr Heery said that figure is an average. It could be cheaper if a driver charges at home, for example, at cheap rates such as at overnight cheap tariffs. The appellant has installation and maintenance costs and the cost for EV charging at its CPs is higher in rural locations. The sum charged to customers is based on the real cost to the appellant of providing the electricity at its CPs. He noted that the subscription method of paying offers a lower cost for regular customers. Currently the “Pay as You Go” rate is around 59 p/kWh whereas the subscription rate is about 41p/kWh.
Terms and conditions of the contractual arrangements
The appellant’s terms and conditions
The appellant’s terms & conditions (“theTerms”) which appear on its website do not appear to bear much relation to the actual facts and circumstances, as accords with Mr Heery’s evidence below. They include the following statements:
“Charge My Street is a Community Benefit Society registered with the FCA number 7704, our registered office is at […] VAT number is […]. eo Charging (“we”, “us”, “our”) provides charging for electric vehicles (“Product or Products”) on ourwebsite, http://www.chargemystreet.co.uk (“Website”). Certain of the Products, including the charger, have pre-installed software, such software has been provided or otherwise made available to you for use with the charger (“Software”). Before you use a charger or run the Software, carefully read these terms and conditions (“Terms”); by using the Products or running or otherwise using the Software you are agreeing to be bound by these Terms. You should save or print a copy of these Terms for future reference. You can contact us by emailing hello@chargemystreet.co.uk or on +44(0) 1524 881227. If we have to contact you, we will do so by email.
When we refer, in these Terms, to “in writing”, this will include email. Please click on the button marked “I Accept” when placing your order if you accept Terms. If you refuse to accept these Terms, you will not be able to order from our Website. By clicking “I Accept” you are agreeing to purchase the Product(s), including any applicable Licence, and may be charged. These Terms, and any Contract between us, are only in the English language.”
The remainder of the Terms contains detailed provisions most of which are plainly not drafted with the type of supplies made by the appellant in mind, such as provisions regarding (a) the use of personal information/privacy, (b) the parties’ respective liability, (c) the appellant’s right to vary the terms, (d) the right of the consumer to cancel the contract in a number of scenarios and reimbursement of payments made in that case, (e) prices and payment; it was stated that prices are quoted on the website, the price includes VAT but not delivery charges which would be advised during the check-out process before confirmation of the order and customers could only pay for products using a Visa, MasterCard or American Express debit or credit card provided they are enabled for online use, or through PayPal or Apple Pay, (f) detailed provisions on the parties’ liability which differed for consumers and business customers, and (g) a provision relating to the grant of a software licence to business customers to use software for a licence fee and detailed provisions regarding its operation and termination.
Mr Heery said in his witness statement that (1) during the appellant’s initial launch phase, he drafted the Terms due to budgetary constraints. As he is not legally qualified, he used EO Charging’s terms and conditions as a template (at that point the appellant was working exclusively with EO Charging as its “partnered app”), (2) he now recognises that there are “some inconsistencies” and EO Charging are incorrectly referenced (see the provision above). It is the appellant that is the CPO who supplies the electricity to the customer, (3) when the appellant partnered with Fuuse from December 2020 onwards, due to resourcing constraints, the Terms were not updated to reflect this change; they have remained as originally drafted. The appellant has been aware that this needs to be actioned and although updated terms have now been agreed, they are not yet live on the appellant’s website, (4) the Terms do not accurately reflect the nature of the supplies. The appellant is, and has always been, the CPO and supplies the electricity to the customer. Fuuse is a supplier of software services to businesses, such as the appellant, in the EV charging industry; it is not a CPO, and (5) the appellant accounted for VAT on its supplies of electricity to customers at the standard rate of VAT and has treated its supplies in this way throughout the claim period. If a customer challenges the charges incurred for EV charging at the appellant’s CP, or has a complaint, the customer must report it to the appellant. It is the appellant’s responsibility, as supplier of the electricity, to investigate and resolve any challenges, complaints or disputes relating to the supplies.
At the hearing Mr Heery said that he drafted these Terms himself to save money and, in his view, they do not in fact reflect what happens; the appellant supplies electricity to the customer. He felt the appellant needed terms and conditions, but they were not a high priority in starting the business. They are a “not for profit” organisation which aims to benefit the community and it was felt there was a low risk of any controversy over them, he was short of time given his focus on developing the business by obtaining more sites for CPs and did not spend much time on them. He accepted that the Terms are not site specific or limited to a period of time; it appears they are intended to apply as and when a customer uses a CP and this contrasts with how a supplier such as Octopus operates as regards its customers (as shown under the contractual terms in the bundles).
Contractual arrangements with Fuuse
The agreement between the appellant and Fuuse provided for Fuuse to provide services to the appellant for specified charges as set out below. In the contract the appellant is “the Customer” and Fuuse is “the Supplier”:
“General usage of Fuuse
The Supplier provides to the Customer the following products: Fuuse Core and Fuuse Billing.
Fuuse Core allows for the management of chargers and monitoring of charge sessions, including charge sessions in real-time and view and download reports about charger usage.
Fuuse Core also provides the ability to manage access to charge points, limit access to specific users that can be validated through RFID cards or our Fuuse app, which is also included in this agreement, and set different opening hours for individual sites or chargers.
Fuuse Billing provides the ability to receive payment for charger usage, including a range of payment options.
Over time enhancements and improvements to the above products will be rolled out, to the benefit of the Customer. These will be provided free of charge to the Customer aspart of this Agreement.
The Supplier may provide additional support beyond the provision of the Services but this is limited to the provision of advice, resource and time but not to the provision of hardware or any other non-agreed cost to the Supplier.
The Customer will endeavour to work with the Supplier to provide timely access to required information to enable the effective implementation of the Services. This includes, but is not limited to, electricity site information to ensure safe use of chargers; location information; information on chargers including any faults and errors; access to required personnel, including at relevant third-parties and sub-contractors.
Future products
During the period of the Agreement, the Supplier may make available new products that may be of benefit to the Customer. These are outside this Agreement and will not be provided to the Customer without their written consent.
Bespoke development work
The Customer may wish to undertake additional works, beyond the products offered, to, for example, enhance its own product offering, make their processes more efficient or to integrate with other software. Such works can be specified between the Supplier and the Customer based on the costs provided in Schedule 2.
Specified Charge Points
The following Chargers are included within this agreement:
[…]
…..
General usage of Fuuse
There will be a fixed cost of £2,160 for the services set out in Schedule 1 until 28 February 2024. This includes any and all setup and support.
Please note, where a Charger constitutes more than one Charge Point, the Customer is charged for each Charge Point registered on the system.
The above stated price is subject to VAT at the appropriate rate. There are no additional costs for the Services provided above other than those indicated. Should these Services be enhanced then these will be offered to the Customer free of charge.
An invoice will be raised for the above chargers once the Charge Points are live on the Fuuse system. The invoice is payable within 30 days under the terms of this Agreement.
Should the Customer require specific work to be undertaken in addition to the Services, such as integrations with other systems, then the Supplier will provide a price for these works.
Bespoke development work / Time and materials
Any additional work requested by the Customer will be pre-agreed in writing and subject to a purchase order before commencement. Costs will be based on standard daily rates for specific employees, [which were specified].”
The contractual terms between Fuuse and the driver included these:
Introductory wording as follows:
“We are Fuuse Ltd, [details of Fuuse].We operate our services under the brand names Fuuse and Wattstop. We provide electric vehicle charging services to Our customers through Our and ClientCharger networks. Further information about the services We provide is available at https://fuuse.io.
The provision of Our Services is made subject to the terms and conditions set out below.
By completing the registration page in Our Website or Mobile App You accept the following terms and conditions and our privacy notice, as set out in Our Privacy Policy. A contract between You and Us is created when you complete the Registration Process.” (Emphasis added.)
The following definitions:
“Terms: these terms and conditions (as amended from time to time) constitute the terms and conditions of the contract between You and Us and set out the basis in which We will provide Our Services and access to the Chargers for use by You.”
“Charger: the electrical charging equipment within the Charger Network that You may use to recharge electric vehicles with electricity. Chargers connected to the Charger Network and available for use by You under these Terms will be identifiable from our Mobile App or Website or otherwise as indicated by signage on the Charger itself.”
“Charger Network: the Fuuse or Wattstop Networks and any Client or third-party charger networks.”
“Charging Session: use of the Charger for a single charging session only.”
“Client: a customer of Us where we provide our Fuuse Platform to enable them to enable a Charging Session for their drivers and undertake payments through the Payment Process.”
“Commencement Date: the date upon which You complete the Registration Process as set out below”
“Fees and/or Charges: the amounts payable by You in connection with Your use of a Charger in order to recharge Your car. The charges are based on the published tariffs as described in accordance with clause 7.”
“Services: the services to be provided to You by Us under these Terms, together with any other services which We provide or agree to provide to You in writing.”
It was stated that Fuuse could revise these terms from time to time in specified circumstances including to reflect:
“(a) changes in relevant laws and regulatory requirements;
(b) to reflect changes in the way in which We accept payment for the Services; or
(c) any changes in Our business model; or
(d) any circumstance which affects the way in which We are able to provide the Services; or
(e) any other circumstance which, in Our reasonable opinion, necessitates a change to these Terms”
As regards “the Services” the following is stated:
“We will supply the Services to You from the Commencement Date until the Contract is cancelled in accordance with clauses 10 or 11.
We will make every effort to provide the Services to You in a timely and efficient manner. However, the provision of the Services may be delayed or suspended due to an Event Outside Our Control. Please see clause 14 for Our responsibilities should an Event Outside Our Control happen.
We may have to suspend or amend the Services either altogether or in relation to specific Chargers in order to deal with technical problems. Wherever practical, We will notify you of unavailability via Our Mobile App.”
As regards payment:
“If You do not pay Us for the Services when You are supposed to, We may suspend the Services with immediate effect until You have paid Us the outstanding amounts. We will contact You to advise You should this situation arise…”
“In order to use the Chargers, You will be required to register your Payment Card details to your Mobile App. Please note the following:
(a) We use an encrypted secure payment mechanism, to ensure Your Payment Card details are safe;
(b) We only accept payment in Pounds (£) Sterling;
(c) We only accept payment using Visa, Mastercard, Maestro, Solo and American Express; and
(d) all Payment Card payments are subject to authorisation by Your Payment Cardissuer.
(e) Before charging Your electric vehicle, a pre-authorisation reserve amount may beheld by Us from Your Payment Card account as part of the Payment Process until the total Fees and/or Charges payable for the Charging Session (including any applicable Overstay Charges) is debited from Your Payment Card account following completion of the Charging Session…..
(f) Upon completion of a Charging Session, We will take a payment from Your Payment Card. The amount charged to Your Payment Card will be calculated based on the tariff appropriate for the individual Charger You used during the Charging Session, as well as any applicable Overstay Charges and other additional Fees and/or Charge”
“Please note that we may levy additional Fees if Your connection exceeds a specified time limit applied to a Charge Session or a time limit after your vehicle is fully charged. These Fees are referred to as, “Overstay Charges”. The overstay period (i.e., the time after which such Charges will be levied) as well as the size of the Overstay Charge will be indicated as per clause 7.2. An Overstay Charge will be levied if the Customer remains connected to the Charger in excess of the specified overstay period and thereafter for subsequent overstay periods.”
The bundles contained examples of invoices produced to HMRC by the appellant’s advisers:
An invoice dated 1 November 2022, which shows Fuuse’s charge to the appellant for the following:
Software operation of 108 connectors on the appellant’s public CPs. The advisers noted that the appellant said that the plug on a CP requires a connector, so that, as some CPs have more than one plug, there would have been fewer than 108 CPs at this time.
The same for one connector on a CP at Haven Cottage. This was the first property where the appellant was seeking to operate its “Charge While You Sleep” offering.
An invoice dated 7 November 2022 which shows commission that Fuuse charged to the appellant for processing payment transactions, at 20p plus VAT per transaction.
An invoice dated 20 August 2024 which covers similar points to the first invoice. The software operation services are described as “Fuuse Core”. The invoice therefore shows Fuuse’s charge to the appellant for the following:
Software operation of 170 connectors at the appellant’s public CPs.
Software operation of 8 connectors at the appellant’s public CPs on Lancaster Council properties where a higher charge applied.
software operation of 16 connectors at “Charge While You Sleep” business properties including Haven Cottage – it is stated that Fuuse discounted this fee to zero as a concession to the appellant due to the “CWYS” scheme not generating net revenue for the appellant at that point.
The documents produced at the hearing contained a number of screenshots showing what a customer who used the Fuuse app sees and has to do in order to utilise the app regarding a charging session at one of the appellant’s CPs. In these, there are some references to the appellant but there is no reference to its website and/or Terms.
At the hearing, Mr Heery accepted that customers using Fuuse could access its terms and conditions but not those of the appellant and customers may not be clear if the supplier of electricity at the appellant’s CPs is Fuuse or the appellant. He said that they just want the customer journey to be simple and so do not over brand things as it confuses things and in rural areas drivers may not be able to download a lot. Mr Heery confirmed that payments from the drivers go direct to the appellant (via Stripe) and not first to Fuuse. Stripe’s contract is with the appellant. He confirmed that subscribers who use Fuuse would receive an email after subscribing. The email states it is from the appellant but the driver is thanked for subscribing with Fuuse.
Arrangements with Paua
The agreement between the appellant and Paua contains the following main terms:
Under a heading “purpose of the document” it is stated that:
“Paua is an “Electric Mobility Service Provider” (“EMSP”), offering an EV charging service to EV drivers by providing value by enabling access to a variety of charging points across a geographic area. Paua acts as an EMSP.”
“The Charge Point Operator operates and manages Electric Vehicle Charge Points.”
“This Agreement sets out the key terms between the Charge Point Operator and Paua as an EMSP whereby the Parties have agreed, subject to the terms of this Agreement, to collaborate to enable drivers to find, charge and pay for electric vehicle charging using Paua’s apps.”
“In order for Paua to provide services to Drivers, the CPO will grant Paua and Paua’s Customers’ access to the Charging Infrastructure and Charge Point.”
“Drivers” is defined to mean a user of Paua’s software. It is stated that “these users are the ones physically using the CPO’s Charge Point” and that they include but are not limited to “Paua Customers, a Paua Customer’s employee, or a “Driver” authorised by a Paua Customer to progress with the “Charging Session””. “Paua Customer” means:
“the contract party of Paua to which Paua offers electromobility services and a customer may either be fleet or intermediary customers (for example electromobility suppliers, utility companies, operators of fleets of electric vehicles, manufacturers of Electric Vehicles or manufacturers and suppliers of equipment to electric vehicles) or direct end customers (for example “Drivers” of Electric Vehicles) of Paua (and “Paua’s Customers” shall be interpreted accordingly)
It is provided that the “Parties shall provide Electromobility Services throughout the Initial Term in accordance with the terms of this Agreement and the Service Level Agreements”.
Under a heading “Services provided by Paua to CPO” it is stated that
“Paua will support the CPO, in accordance with the terms of this Agreement, in assisting in the promotion of the CPO’s network of Charge Points in order to encourage an increased number of Drivers initiating Charging Sessions on the CPO’s network of Charge Points using Paua’s Applications.”
“Paua shall, subject to the terms of this Agreement and all applicable laws, share the following specific data with the CPO being: (i) the number of Charging Sessions from Drivers; (ii) the current discount tier; and (iii) the number of unique Drivers that have charged on the CPO’s network of Charge Points.”
“In addition to the specific data to be shared by Paua pursuant to Clause 3.4, Paua shall share the following specific data relating to each charging session:
• the post code area of “vehicle home” when available and area only (based on first half of postcode e.g. TW11) and country where applicable;
• ]Make, model of car (when available); and
• Type of customer (either categorised as a fleet or personal customer”
The appellant was required to “share all necessary data that enable Paua to provide Paua’s Customers with Electromobility Services, including but not limited to locating, accessing, charging and paying for Electric Vehicle Charging Sessions…..”
As regards payments, it is stated that:
“Paua will be responsible for all relevant payment from the Paua Customer and reserves the right to set its own payment structure.”
“Following the Charging Session, the CPO shall provide the CDR immediately via the Protocol to Paua to enable Paua to bill the correct amount for such Charging Session to the relevant Paua Customer.”
“The CDR shall be used as the basis for invoicing Paua. Paua shall pay such amounts as determined by CPO for the relevant Charging Sessions in the relevant calendar month to the CPO’s bank account”
As regards contact with the customer, it is provided that:
“Paua will be the primary interface with the Paua Customer and Paua Driver during usage of the Application. The CPO agrees to provide all reasonable assistance to Paua and Paua Customers from time to time, including but without limitation, the provision of certain information as well as in connection with practical issues that may occur with a particular Charge Point or Charging Session.”
“In the event of a customer complaint Paua and the CPO will cooperate to find a solution in the interest of maintaining good relationships with the Paua Customer.”
“The Parties acknowledge in the event of any hardware failures, the Paua Customer and/or Paua Driver shall be instructed to contact CPO via standard hotline as advertised on the CPO’s Charging Stations.”
“The Parties acknowledge in the event of any errors relating to the Paua App, the Paua Driver shall be instructed to contact Paua through an email message or directly within the Application.”
“The Parties acknowledge in the event of any Driver payment issues, Paua shall address such issues with Driver and the CPO shall provide all reasonable endeavours to support resolution, where required to do so by Paua.”
As regards the appellant’s obligations, it is provided that:
“The CPO shall enable certain functionality to be completed using the relevant Protocols. The CPO agrees with Paua to implement new versions of the relevant Protocols and related functions upon the request of Paua. The CPO will agree with Paua method of data integration to facilitate charging services using one of following possible options:
The CPO shall share all necessary data that enable Paua to provide Paua’s Customers with Electromobility Services, including but not limited to locating, accessing, charging and paying for Electric Vehicle Charging Sessions…
The CPO shall ensure that the Charging Infrastructure and associated Charge Points are made available to Paua’s Customers and Drivers and such Charge Points comply with applicable laws and technical and safety standards, that such Charge Points are functional, and fit for purpose of charging Electric Vehicles and maintained in accordance with Good Industry Practice.
The CPO shall seek to ensure maximum availability of Charge Points to Paua’s Customers and Drivers.
The CPO shall be responsible for obtaining and maintenance of all applicable consents, approvals and licences necessary for the metering of electricity and that the CPO’s activities complies with all applicable laws agreement between Paua and driver.”
The agreement between Paua and the driver includes the following main terms:
It is stated that (a) Paua provides access to “the Services for Drivers of EVs”, (b) unless otherwise agreed by Paua in a separate written agreement with the driver, “the Services” are made available solely for the driver’s personal, non-commercial use, and (c) Paua warrants to provide “the Service” at all times with reasonable skill and care.
As regards “the Services”, it is stated that:
“The driver acknowledges that Paua only provides access to the Services and charges fee for this and does not provide or own any EV charge points or charging stations where charge points are located or function as a CPO, who operates and manages a network of charge points open to the public and that all such EV charging services are provided by independent CPOs who are not employed by or otherwise associated with Paua or any of its affiliates.
We may in our sole discretion determine how Services, including the App, are presented and delivered to your phone, tablet or computer (each, a 'Device') or are otherwise made available to you. We can change the way they are presented, delivered or otherwise made available to you at any time.
The Services do not constitute and should not be construed as a recommendation or offering of any transaction in relation to a charging session.
You can start a charging session at all Charge Points that are available through the Services via different means. These include using an Application or Card (including via Partner Services). Enabling location services and notifications improves the Services and is required for some features of the Services. Sometimes this will require access to your Device's camera to scanthe respective QR code of the Charging Station. You acknowledge that if you do not allow location services, notification, or camera access, you may not be able to use the full functionality of the Services and Paua is not responsible for any such lack of use caused by you. You will not be entitled to any reduction in applicable fees for any such lack of functionality.”
As regards the appellant’s role, it is stated that:
“The CPOs are fully responsible for ensuring the operation and maintenance of their own charge points and the availability of charge points is subject to change. Paua has no control over such CPOs or Charge Point functionality and features, which may change without notice to Paua or the driver. If any CPO ceases to provide access to any Charge Point functionality or features, Paua may be required to cease providing access to certain functionality and features of the Services and App, in our sole discretion. Paua shall not be liable to you for any refunds or any damage or loss arising from or in connection with any such change made by a CPO or any resulting change to the Services. You irrevocably waive any claims against Paua with respect to any services provided by CPOs, including the provision of Charge Points and Charging Stations.
Any problems or questions that might arise with regards to hardware malfunction, connection issues or other services that lie outside of the Services provided to you under these Terms should be targeted at and dealt with by the respective party offering these services (for example: the CPO). Where available to us, CPO contact information may be provided in the Paua App but this is not guaranteed and any contact information is provided to you on an as-is basis with no warranty as to its accuracy or usefulness.
The CPO provides access to its charging stations and charge points through the Services and, in order to access said hardware, you may be required to accept the respective CPO’s terms and conditions. These CPO terms and conditions are available on their website(s) or as otherwise advised by the relevant CPO. You acknowledge that you access any such third-party websites at your own risk. We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transaction completed, and any contract entered into by you, with any such third party. Any contract entered into and any transaction completed via any third-party website is between you and the relevant third party, and not us…...
As regards payment and contact with the customer, it is stated that:
“Paua uses third-party payment processors (each a "Payment Processor") to process payments for its services and you agree to pay Paua through the Payment Processor. The processing of any such payments is subject to the terms and conditions and privacy policies of the Payment Processor, in addition to these Terms. Paua currently uses Stripe and, as such, your payments are processed by Stripe in accordance with Stripe’s terms of service and privacy policy (there was a link to its website). Any disputes arising from payments between you and the CPO when using the Services should in the first instance be referred to Paua in accordance with Clause 6 - Customer Complaints below
Paua will be the primary interface with the Paua Customer and Paua Driver during usage of the Application. The CPO agrees to provide all reasonable assistance to Paua and Paua Customers from time to time, including but without limitation, the provision of certain information as well as in connection with practical issues that may occur with a particular Charge Point or Charging Session.”
Arrangements with Allstar
The agreement with Allstar and the appellant contained the following main terms of relevance:
“The Supplier acknowledges and agrees that the Goods that are purchased by the Authorised User using the Card or Authorised Means are sold by Allstar to the Client. In no event, it is the Supplier who sells the Goods to the Client when the Card is being used. The Supplier shall supply the Goods to the Authorised User on behalf of Allstar. For the VAT purposes, Allstar shall remain the principal seller of the Goods to the Client. Allstar shall issue a valid VAT invoice for the Goods to the Client.”
“The Supplier shall sell the Goods to Allstar on the same terms and conditions and at the same price that the Supplier would apply for cash sales displayed at the Point of Sale minus the Discount unless agreed otherwise by the parties in writing.”
“The Supplier shall ensure that the price of Goods displayed at each Site (or published on the Supplier’s website) accurately reflects the unit price of the displayed Goods and shall be applied in the calculation of the Transaction Amount.”
“The discount, fees and charges applying to this Agreement are set out in [a schedule]. Provided that the Supplier complies with its obligations under this Agreement Allstar shall pay all sums due as recorded in Transaction Data less the Discount together with any sums that may be properly withheld in accordance with this Agreement by crediting the Supplier’s bank account.”
“Allstar shall issue and send to the Supplier a copy of a self-billing invoice for Allstar to pay the Transaction Amounts. The Supplier shall not issue any other VAT invoice.”
“The Supplier agrees that Allstar shall issue self-billing invoices for all Goods and Services supplied in accordance with this Agreement. Such agreement to self-bill shall remain in force for the duration of the Agreement unless otherwise agreed in writing with Allstar.”
“The self-billing invoice issued by Allstar to the Supplier shall be the only VAT invoice raised for a Transaction. The Supplier shall not raise any VAT invoices in relation to a Transaction.4.3 The Supplier shall not offer or provide a VAT receipt to any Authorised User.”
Under the agreement between Allstar and the driver:
(a) “Goods and Services” are defined as “anything which can be bought with a card including electricity, (b) “Standard Charge” are defined as “the recurring and ad-hoc charges applicable to your account and Cards which forms part of the Agreement as updated from time to time.”, and “Suppliers” are defined as those “who hold agreements with us or any of our associated companies to accept Cards to purchase Goods and Services”
As regards the services to be provided and payment, it is provided that:
“We have entered into supply agreements with CPOs to provide you with access and payment with our Card on their charge points. This access is governed by this Agreement. Goods and Services is anything which can be bought with a card including electricity/Standard Charges Suppliers who hold agreements with us or any of our associated companies to accept Cards to purchase Goods and Services.”
“You warrant that you and your Drivers abide by the terms and conditions of use of each CPO. These are detailed on their website or on the physical charge point.”
“You are responsible for: (a) paying any access and/or parking charges due to third parties in respect of any Charge Point; or (b) meeting the requirements for exemption from such charges(e.g. by presenting your Card); and (c) the costs of any fines or penalties imposed by the relevant parking enforcement authority and of any charge applied if your vehicle is immobilised, clamped or removed.”
“You and your Cardholders must follow all instructions in relation to the use of a Charge Point (which may differ from one Charge Point and/or Charge Point Operator to another, particularly where the service is different).”
The bundles contained examples of “self-billing” invoices produced by Allstar which appear to show Allstar being charged for supplies of electricity and then supplying the electricity on to the driver. There were also invoices showing supplies of electricity from the appellant to Electroverse/Octopus. Mr Heery commented that if the appellant was not involved there would be no supply of electricity to the customer/driver; there would be no supply but for the provision and usage of the appellant’s CPs; the appellant controls the infrastructure. He accepted that, however, contractually the third-party app may be the appellant’s customer. He said there used to be complaints made to the appellant and the appellant would go to the CP site and try to fix the problem. However, that has really dropped off now as the CP operation is more reliable. He noted that the appellant’s name is on the signage as it is their hardware that is used to make the supplies. He thought that customers go after whoever can fix the problem which is the appellant rather than the app as the appellant is contactable or more so than the app and wants to sort out the problem. He accepted that the appellant’s terms are not site specific or for a specific period of time and that they are intended to apply as and when a customer uses charging services.
Arrangements with Bonnet
The agreement between Bonnet and the appellant contains the following main points of relevance:
“CPO Services” are described as “basic charging and booking of charge points”. It is stated that the CPO is to provide technical support to Bonnet, the agreement is for a term of 1 year which is renewable, the CPO is to invoice Bonnet for energy purchases/services delivered at a specified rate and is to notify Bonnet of changes in the tariff in advance and Bonnet could accept them or elect to terminate the agreement.
A “Bonnet Customer” is defined as a natural person or legal entity who has a Token (as defined as a means issued by Bonnet by which a “Bonnet Customer” can identify itself at a “Charging Point to start a Charging Session”) or who has entered into any other type of agreement with Bonnet regarding “EV Roaming”.
A “Charging Point” is defined as “a facility, with the charger attributes detailed in the “Contract Details”, including all associated and underlying installations, where an electric vehicle can be charged and means only “Charging Points” represented by or through the CPO.”
It is provided that:
“During the Term, the CPO shall provide to Bonnet the CPO Services in the Territory, and Bonnet shall pay the Tariffs to the CPO in accordance with the Contract Details”.
“The CPO must immediately report to Bonnet any emergency, anomaly, or malfunction of a Charging Point and/or any incorrect POI of which it becomes aware via the exchange of dynamic POI information. Bonnet shall use reasonable endeavours to provide the same information to the CPO via Bonnet Dash.”
“If Bonnet opts to purchase energy upfront, it shall notify the CPO, setting out the number of units it requires. The CPO shall invoice Bonnet for those units at the rates set out in the Contract Details within [7] days of receiving notice from Bonnet, and Bonnet shall pay the invoice within [5] days of receipt. Once Bonnet has paid the invoice (or provided proof of payment), the CPO shall make the energy available within [5] days. The CPO shall provide the CDRs in respect of any energy purchased upfront.”
The Agreement between Bonnet and the driver contains the following main terms:
As regards Bonnet’s role it is stated that:
“The OVO Charge App is owned and provided to you by OVO. We grant you access to the App in exchange for your acceptance of and compliance with these Terms.”
“The OVO Charge App is a technology platform that allows users to connect with independent third-party service providers, [CPOs] and use their Charging Stations in selected locations. You can view a map of locations we cover in the App. OVO doesn’t provide any charging services to you directly or own any of the Charging Stations….”
“To sign up to Charge Anywhere and use the App, you must [be over 18, live in specified countries, download the OVO Charge App, create an account and register a valid payment card which must be in your name, select from one of our Membership Plans or register as Pay As You Go customer; and [a number of other conditions].”
“You acknowledge that we process payments through a third-party service provider and do not provide or own any EV Charging Stations or function as a [CPO]. All such EV charging services are provided by independent CPOs who are not employed or otherwise engaged by OVO or any of its affiliates.”
As regards the role of the CPO, it is stated that:
“We are not responsible for the maintenance or proper functioning of the EV Charging Stations and accept no liability in relation to your use of the EV Charging Stations. The CPOs are fully responsible for ensuring the operation and maintenance of their own EV Charging Stations. “
“The CPO provides access to its Charging Station through the App and, by using the Charging Station, you are automatically agreeing to the respective CPO’s terms and conditions.”
“Any problems or questions that might arise with regard to the Charging Stations, connection issues or other services that lie outside of Services provided to you under these Terms should be raised with and dealt with by the respective party offering these services (for example, the CPO).”
“….CPOs are solely responsible for providing the most accurate information about their Charging Stations. We shall have neither liability nor responsibility to any person or entity with respect to any loss or damage caused, or alleged to be caused, directly or indirectly by the information contained within the App or the Services.”
As regards contact with the driver, it is stated that:
“You are responsible for the correct use of the Charging Stations at which you conduct Charging Sessions. This implies that you use these Charging Stations according to their intended use as governed by the terms and conditions of the respective CPO. If you require guidance, service or support on how to use any particular EV Charging Station, you will need to contact the CPO that you are using directly. Their customer services contact details may be found on their website and are often advertised at the EV Charging Station itself.”
“Any gross misconduct or misuse by you leading to damage of Charging Stations will constitute a material breach of these Terms and your Membership Plan will be terminated.”
“Any disputes will be handled between you and the CPO directly. However, if a claim is raised against us by a CPO because of your misuse of the Services (including, without limitation, misuse which has led to damage of a specific Charging Station or any other breach of these Terms or the CPO’s terms), we shall pass on any such liability to you and you shall be liable to the CPO directly for any damage.”
As regards payment, it is stated that:
“The price per kWh you will pay for EV Charging (the “Rates”) carried out through Charge Anywhere will be displayed in our App. Rates are shown in your local currency and are priced individually for each country. We endeavour to ensure that Rates displayed on the App reflect the CPO’s most up to date price, however, occasionally, changes and errors occur, and we do not accept any responsibility if the Rates displayed on the App are inaccurate or do not reflect most up to date prices. You will be bound by whatever actual Rate is displayed on the App at the time of your EV Charging and you will not be entitled to claim back from us any monies paid due to any variation or inaccuracy….we will charge you after every Charging Session successfully completed through the App for the amount of electricity you have consumed in that Charging Session. All charges will be calculated with reference to our Rates displayed on the App and will be automatically deducted from the payment card registered in your account.”
“All bills, invoices and prices provided to you by us are inclusive of any applicable VAT. To the extent any personal or other taxes are payable by you in respect of this Agreement in the jurisdiction where you reside or otherwise, they shall be entirely your responsibility.”
“Before you begin a Charging Session, we will hold a pre-authorisation fee on your payment card.”
“….We can make changes to the Services and these Terms, including our Rates at our sole discretion. We will always let you know about the changes in advance if these changes will negatively affect you”
Arrangements with Octopus
The agreement between Octopus and the appellant includes the following terms:
In the definitions:
“Chargepoint” means “all of the Partner’s network of electric vehicle charging stations”.
“Octopus Customer” means:
“any individual or organisation that has taken a product from Octopus Energy or Octopus EV, including but not limited to:
(i) being provided electricity by Octopus Energy;
(ii) leasing an electric vehicle from Octopus EV;
(iii) having an electric vehicle charger, smart meter, or other piece of energy hardware installed by Octopus Energy (or any sub-contractor thereof);
(iv) having participated in Octopus Energy’s V2G trial; and/or
(v) registering with Octopus Energy to use the Electric Juice Network.”
“Electric Juice Network” means:
“Octopus’ entire public electric car-charging product offering, which consists of a method for an Octopus Customer to access multiple electric vehicle charging networks and for the charges associated with their usage of those networks to be included on an Octopus Energy bill.”
It is provided that the parties agree to work together to enable Octopus to provide access to “Partner Chargepoints through [the network] to Octopus Customers with the intention of enhancing consumer experience of electric vehicle charging”.
As regards the appellant’s role it is provided that:
“During the term of this Agreement, the Partner shall:
(a) provide and shall be solely responsible for:
i. the provision and operating, maintaining, administering and supporting of the Chargepoints in the Electric Juice Network in accordance with Good Industry Practice and for any applications it delivers across the Chargepoints that is operated by the Partner;
ii. the provisioning and operating, maintaining, administering and supporting of the applications offered in relation to its Chargepoints in accordance with Good Industry Practice;
iii. operating the Chargepoints in compliance with all applicable laws, [the appellant] will:
supply or procure the supply of accessibility, use and enjoyment of the Chargepoints for the Octopus Customers;
make available, via any backend IT systems, any information about the Chargepoint locations including points of interest for Octopus, to be able to be used in any user interface operated and managed by Octopus (dedicated apps, websites, etc.);
allow any Octopus Customer to commence and complete a Charging Event for any duration as may be required by the customer (including authorization, starting the session, monitoring and ending the process);
update the point of interest data and complying with the operation mode of any user interface operated and managed by Octopus;
co-operate with Octopus in all matters arising under this Agreement or otherwise relating to the performance of the services contemplated by this Agreement;
observe all health and safety rules and regulations and any other security requirements that apply in connection with the access and use of the Chargepoints;
“obtain and maintain all necessary licences, permits and consents required to enable it to perform the services and otherwise comply with its obligations under this Agreement;
… fully indemnify and hold harmless Octopus in connection to any losses suffered by any Octopus Customer”
As regards payment it is provided that:
“Following receipt of a valid, undisputed invoice from the Partner….., Octopus will pay the Partner, on a monthly basis at the Standard Rate, for all charging sessions undertaken by Octopus Customers in the preceding month using an Octopus issued RFID Card or through web-based authentication at the Partner’s Chargepoint, plus VAT at the prevailing rate.”
“The Partner will provide Octopus with a monthly invoice for the amount which is due from Octopus, as determined in accordance with this Clause….Octopus will pay the Partner all undisputed sums set out in such invoice within 30 days of receipt of a valid invoice…..”
“If any dispute arises as to the amount due under an invoice, Octopus shall pay only the undisputed sum, and the Parties shall meet to discuss the portion of the invoice subject to the dispute. In the event that such dispute cannot be resolved within 14 days [then there was a dispute resolution procedure].”
“If Octopus fails to make any payment due to the Partner under this Agreement by the due date for payment, then Octopus shall pay interest on the overdue sum from the due date until payment of the overdue sum…”.
The contract between Octopus and the driver includes the following provisions:
“The EV Charge Points are owned by the respective Charge Point Operator, who is responsible for their operation and maintenance.”
“To make use of the EV Charge Points, you will need to use the RFID Card or an internet-based authentication system, on Charge Point Operator networks that we work with, to start and stop charging.”
“ We will not be able to grant you access to Electroverse if we have not obtained all the information we need to initiate access.”
““Charges” means the charges for the use of Electroverse, being a calculation based on time and/or total energy consumed at an EV Charge Point, and other ancillary costs, for example parking or plug-in fees. Our charges for your use of the EV Charge Points will vary based on the CPO that you are using. Charges are based on the Charging Data Record we receive from the relevant CPO. Charges are made up of, but not limited to: volume of energy consumed, connection fees, time spent charging, and parking fees. Electroverse sets the applicable energy and time-based rates, which can be found on our Electroverse app and on the relevant EV Charge Point.”
“We may round calculations to 4 significant figures to present charges clearly. For example, unit prices and monthly amounts may be round to the nearest 0.01 of the applicable currency. We can also charge you for other reasonable costs under certain circumstances. We will tell you how much such charges are at the time and will provide a breakdown of the costs if you ask us for one…..”
“The EV Charge Points are the property of the respective CPO. We are not responsible for the maintenance or proper functioning of the charge points and accept no liability in relation to your use of the charge points. The CPO is fully responsible for the maintenance and proper functioning of the charge points. If you require guidance, service, or support on how to use any particular charge point, you will need to contact the relevant CPO. Their customer services contact details are available online, and are often advertised on the charge point itself.”
“We are responsible for the maintenance and proper functioning of your Statement of Account. If you require service or support related to your Statement of Account, please contact us directly. We are also responsible for issuing you with RFID Cards. In the event that you require an additional or replacement RFID Card, please contact us directly.”
“We hope you don’t have any need to complain, but if you do wish to make a complaint, please email hello@electroverse.com, or phone us on 0808 164 1088 between 9am and 5pm, Monday to Thursday and 9am to 4pm on Friday in your local jurisdiction and we will do our best to resolve the issue with you.”
Arrangements with Zapmap
The agreement between Zapmap and the appellant includes the following terms:
“In order to facilitate the Introductions, NGC shall display the Zap-Pay Enabled EVSEs to Zap-Pay Users via Zap-Map.”
“NGC shall engage a reputable PCI DSS Level 1 accredited Payment Gateway and coordinate and manage the processing of Zap-Pay User payments for and on behalf of CPO in accordance with the process set out in Schedule 1 to the Terms and Conditions.”
“NGC shall direct Zap-Pay Users to the CPO Services Terms of Sale when accessing CPO Services, such terms of sale which shall govern the Zap-Pay Users' purchase of CPO Services. This direction will be completed prior to purchasing CPO Services within the Zap-Pay User journey. Zap-Pay Users shall access CPO Services with the understanding by the parties and Zap-Pay Users that NGC processes the payments and issues accompanying VAT receipts for and on behalf of the CPO, and that the CPO is responsible for the provision of its CPO Services.”
“NGC shall procure secure storage for all CDRs, payment receipts and statements, in accordance with data privacy and relevant payment service provider legislation, tax and accounting law.”
The contract between Zapmap and drivers envisages two different structures as set out below. It appears from the invoices produced at the hearing that Zapmap’s arrangements with the appellant utilise what is described as the “direct transactions” structure:
“To enable our users to use Zap-Pay across as many different CPO networks as we can, when using Zap-Pay you may be supplied with EV Charging Services in one of two different ways.
Direct Transactions – under this model, we purchase EV Charging Services from the CPO and we are responsible for paying the CPO for the electricity usage and any other charges you incur. In turn, we will provide you with the EV Charging Services on a re-sale basis and you are responsible for paying us for the associated charges under a contract between you and us. In this case, we set the Applicable Tariff (as defined below) payable and will issue you with a VAT receipt from Zapmap.
Payment Processing Transactions – under this model, you will purchase EV Charging Services from the CPO under a separate contract for the supply and purchase of EV Charging Services between you and the CPO and you are responsible for paying the CPO for the electricity you use and any other charges you incur. Zapmap sets the Applicable Tarif
For any Transaction you are proposing to do, you will be able to find out whether you will be purchasing the EV Charging Services under a Direct Transaction or a Payment Processing Transaction as part of the details for the relevant EV Charge Point shown on our App”. (Emphasis added.)
Part C - Submissions and decision on application of Note 5
The appellant suggests that the current rules in item 1 of Schedule 7A VATA are made pursuant to Article 102 of the Council Directive 2006/112/EC (“the PVD”). However, on the analysis of the history of the provisions set out by HMRC, rather it appears that the EU authority for these rules is found in Article 113 PVD. HMRC made the following points as regards the history of the relevant provisions
Article 98 of the PVD permits the application of the reduced rate to supplies of goods and services within the categories stated in Annex III. However, electricity is not within any of those categories. Article 113 of the PVD (formerly Article 17 of the Second Council Directive 67/228/EEC (“the Second Directive”) and Article 28(2) of the Sixth Directive (77/388/EC) (“the Sixth Directive”) provides that:
“Member States which, at 1 January 1991, in accordance with Community law, were granting exemptions with deductibility of the VAT paid at the preceding stage or applying reduced rates lower than the minimum laid down in Article 99, in respect of goods and services other than those specified in Annex III, may apply the reduced rate, or one of the two reduced rates, provided for in Article 98 to the supply of such goods or services.”
In essence, this rule allowed Member States to continue to apply existing reduced rates of VAT to supplies. However, this was only permitted where the reduced rate was applied “for clearly defined social reasons and for the benefit of the final consumer”.
When VAT was introduced by the UK by Finance Act 1972, most supplies of fuel and power were zero-rated whoever they were made to. However, in 1988 in Commission v UK (C-416/85), the UK was found to be in breach of its obligations under the Second Directive by applying, in the Value Added Taxes Act 1983, the zero-rate to all supplies of fuel. The court held that the UK’s zero-rating regime for supplies of fuel failed to limit the benefit to final consumers, being the person who “acquires goods or services for personal use, as opposed to an economic activity, and thus bears the tax” (see [17]). Following this case, schedule 21 of the Finance Act 1989 (“FA 1989”) restricted zero-rating of fuel and power to supplies for “qualifying use” meaning domestic use or use by a charity otherwise than in the course or furtherance of a business. This provision was also the first enactment of the de minimis rules now found in Note 5. This was originally in Note 2 to Group 7 (fuel and power) of Schedule 5 to the Value Added Tax Act 1983 as inserted by schedule 21 of the FA 1989.
Article 12 of the Sixth Directive was amended in 1992 to include provisions permitting Member States to apply a reduced rate to certain supplies including electricity. That is the provision which is now included in Article 102 of the PVD as follows:
“Member States may apply a reduced rate to the supply of natural gas, of electricity or of district heating, provided that no risk of distortion of competition thereby arises.
Any Member State intending to apply a reduced rate under the first paragraph must, before doing so, inform the Commission accordingly. The Commission shall decide whether or not there is a risk of distortion of competition. If the Commission has not taken that decision within three months of receipt of the information, no risk of distortion of competition shall be deemed to exist.”
As noted, the appellant suggests that the current rules in item 1 of Schedule 7A VATA are made pursuant to this provision. However, as HMRC submitted, this provision was enacted after the introduction of the rules referred to above by FA 1989 and there is no evidence that the UK informed the Commission in order for the Commission to decide whether or not there is a risk of distortion of competition. Article 102 has now been repealed and article 105a preserves the right to maintain a reduced rate of VAT if it was lawful on 1 January 2021. This provides that:
“Member States which, in accordance with Union law, on 1 January 2021, were applying reduced rates lower than the minimum laid down in Article 98(1) or were granting exemptions with deductibility of the VAT paid at the preceding stage, to the supply of goods or services listed in points other than Annex III, points (1) to (6) and (10c), may, in accordance with Article 98(2), continue to apply those reduced rates or grant those exemptions,
HMRC submitted that UK legislation must be construed, so far as possible, so as to comply with certain EU law, including the principles set out above:
On leaving the EU, the UK entered a year-long implementation period during which it continued to be treated as a Member State for many purposes and remained bound by EU law. This was achieved under ss 4(1) and 5 of the European Union (Withdrawal) Act 2018 (“EUWA”) which preserved in UK law the recognition of rights, powers, liabilities, obligations, restrictions, remedies and procedures which had derived from EU law.
When the implementation period ended on 31 December 2020, a body of EU-derived rights and legislation (retained EU law) was converted into domestic UK law. From then until 31 December 2023, EUWA 2018 s 4(1) preserved EU rights and obligations available under UK law as at 31 December 2020. However, EUWA 2018 s 4(2) provided that a right or obligation under a directive was not preserved unless it was ‘of a kind’ recognised by the Court of Justice of the European Union or a UK court or tribunal before 31 December 2020.
From 1 January 2024, retained EU law was re-categorised as “assimilated law”. Assimilated law is generally to be interpreted according to ordinary UK domestic law and principles. This was the effect of The Retained EU Law (Revocation and Reform) Act 2023 which repealed ss 4 and 5 of EUWA. However, under s 28 of Finance Act 2024 UK VAT legislation is still to be interpreted in accordance with EU law and general principles (but not for the purpose of disapplying, UK VAT (and excise) law.) From that time the principle of conforming construction relates only to “assimilated law”, namely, the retained EU law that was converted into domestic law on 31 December 2020. In consequence, amendments made to the PVD after that date are irrelevant.
HMRC therefore maintains that article 113 of the PVD is the basis for the UK applying the reduced rate to fuel and power and that, if necessary, a conforming construction would prevent the appellant’s interpretation of Note 5(g).
HMRC submitted that (1) when the predecessor to Note 5(g) was introduced in its current form in 1989 as described above, Parliament must have intended to avoid a breach of EU law as far as possible. Hence, they must have intended that the provision now in Note 5(g) would be effective for EU law purposes and that supplies would fall within it only to the extent they are truly “de minimis” so as not to breach the ruling that supplies of fuel and power can benefit from a reduced rate only if made generally to the final consumer, (2) plainly this provision, when introduced in 1989 was not enacted with supplies of electricity to EVs in mind. It was a provision which was intended to work in the context of the electricity supply industry as it then existed, and (3) as set out below, the difficulty with the appellant’s interpretation is that it would result in the reduced rate applying to many business supplies which would clearly put the provision in breach of EU law. Hence, a conforming interpretation must be applied although, in any event, the appellant’s construction of Note 5(g) is incorrect on its plain, natural meaning. The appellant disputes that a conforming interpretation requires such an approach as set out below.
On the general approach to the interpretation of Note 5(g):
It was common ground that the modern approach to statutory interpretation as a matter of domestic law requires the courts to ascertain the meaning of the words used in a statute in the light of their context and the purpose of the statutory provision. In that context, HMRC referred to News Corp UK & Ireland Ltd v Revenue and Customs [2023] UKSC 7 at [27], [2023] STC 446.
HMRC emphasised that it is established that provisions which, as here, are exceptions to the standard rate of VAT must be construed strictly, by giving the words a meaning which they can fairly and properly bear in the context in which they are used. They referred to Erotic Center (Taxation) [2010] (C-3/09) at [15] and Expert Witness Institute v Customs & Excise Commissioners [2001] EWCA Civ 1882 1 WLR 1674, [2002] STC 42 at [17] to [19], as endorsed in Target Group Ltd v Revenue and Customs Commissioners [2023] UKSC 35, [2023] STC 1770 at [18]. The appellant did not disagree but emphasised that construing such provisions strictly does not mean they should be construed restrictively; they should be given a fair interpretation, as Whipple LJ said in Greenspace (UK) Ltd v HMRC [2023] EWCA Civ 106 at [33]:
“It is common ground that the provisions contained in Schedule 7A, by which the reduced rate is conferred on certain supplies, are exceptions to the general rule that supplies should be taxed at the standard rate. Accordingly, they are to be interpreted strictly but not restrictively. This follows the established rule in relation to exemptions from VAT, considered in Expert Witness Institute v HMRC [2001] EWCA Civ 1882, [2002] 1 WLR 1674, where the Court held that an exemption should not be subject to a strained or even particularly narrow construction, rather the Court’s task was to give the words of the statute a “fair interpretation” (per Chadwick LJ at [16] and [17]), and Case C-445/05, Haderer v Finanzamt Wilmersdorf [2007] CMLR 17, where the CJEU said that the exemptions should not be construed in such a way as to “deprive them of their intended effect” ([18]).”
At [34] Whipple LJ commented that undefined words in the note under consideration in that case must bear their ordinary meaning. The appellant submitted that the same applies to the terms used in Note 5(g)
The appellant submitted that, on the correct strict but fair interpretation of Note 5(g), it plainly covers supplies which the appellant makes:
There is a supply of electricity from a public CP to an EV, in order to recharge the EV’s battery.
There is a supply “to a person” if it is simply to “any” legal person; there being no restriction in Note 5(g) as to the nature of the person. The supply of electricity from a public CP is to “a person”, who is ordinarily the driver.
There is no restriction in Note 5(g) as to the nature of the “premises” referred to and no kind of restriction is intended, as they can be “any” premises. The term “any premises” must include premises other than homes/dwellings, as unlimited supplies of electricity to homes/dwellings would be subject to the reduced rate in any event under Note 6. Accordingly, “any premises” is capable of including premises in public places. Further, Note 6 lists certain types of premises and includes even caravans and houseboats. In its context, therefore, the ordinary meaning of “any premises” is “any place” or “any location”. There is no difficulty about defining the place or location of a charge point in a public place, and indeed it may be described as “premises” when it is demised to the CPO (as in a number of the appellant’s leases). The term “any premises”, therefore, must include CPOs in public places.
The requirement regarding the rate of supply means that the electricity provided to a person by any single supplier at any single premises (charge point) must not exceed 1000 kWh in a month. This is a standard measure of electrical energy, which is equal to the power consumption of one thousand watts for one hour. Where a person uses, for example, a 22kWh public EV charger/charge point for three hours in order to charge an EV, they have used 66kWh of electricity. If they were to use the same charge point and the same supplier in the same way for 15 days in a month, electricity is provided to them “at a rate” of 990kWh a month, the “rate” being power in kWh multiplied by the number of hours of usage in a month. The “rate” is accordingly calculated on the straightforward basis of the amount of electricity, kWh units, supplied over one month. This is why Note 5(g) is known as a “de minimis” provision, in that it ensures that supplies of relatively small amounts of electricity benefit from reduced rating, and is consistent with Note 5 generally, which treats the supply of relatively small amounts of fuel and power (de minimis amounts) as benefiting from the reduced rate.
HMRC submitted that the appellant’s interpretation is contrary to the wording and purpose of the provision and, even if that were not so, the principle of conforming construction would prevent it:
The expression “to a person at any premises” contains two requirements:
The draftsman is envisaging the person’s premises.
Not all locations are “premises”. Case law indicates that the better view is that “premises” means buildings. The word “any” relates to the type of premises. In other words, it does not matter whether the premises are a house, an office or warehouse. Note 5(g) is not limited by the type of premises to which the electricity is supplied
This provision must be interpreted bearing in mind the context in which this provision was originally enacted (see above). This term is a composite phrase which appears in Notes 5(c), (e) and (g) but does not appear in the other sub-paras in Note 5. Those words are part of the scope of those de minimis provisions and on a straightforward reading, they qualify which types of supply can benefit from the reduced rate. Parliament must have intended this condition to have some meaning and effect. If the appellant’s interpretation were right, the words “to a person at any premises” would be entirely otiose. Every supply of fuel or power is made to someone and at some location. There would have been no reason to include any such condition in some (but not all) sub-paras of Note 5.
Whilst the words “any premises” are potentially wide enough to refer to premises owned by any person, in this context, the draftsman intended the phrase to be read as a whole because it appears in the same form in each of Notes 5(c), (e) and (g). It is instructive to compare those paras to the other Notes 5(a), (b) and (d). They refer to supplies of “domestic fuel” and are not concerned with where the supplies take place. Instead, they are limited by whether supplies are of domestic fuel because they are held out for sale as such or are they not intended for re-sale by the recipient. Therefore, it was intended that these supplies would be used by the recipient only. By contrast, Note 5(e) provides for supplies of liquid gas “to a person at any premises at which he is not able to store” more than two tonnes of petroleum gas. The reference to “he” must be taken to be a reference to the recipient of the supply. Therefore, the draftsman has assumed that the recipient will have sufficient ownership or control of the premises where the supply takes place to be able to store up to two tonnes of petroleum gas. Thus, the reduced rate in Note (e) is limited by the location of the supply. Rather than restricting the reduced rate in the manner of Notes 5(a), (b) or (d), Note 5(g) (like Note 5(e)) uses the phrase “to a person at any premises”. In addition, the draftsman expressly envisaged that it may be appropriate to compute the rate of electricity by reference to a period of electricity provision of one month. These indications point towards Note 5(g) being limited to supplies made to the recipient’s premises.
There is no statutory definition of “premises”. It must therefore take its ordinary meaning, construed in context. In Majorstake Ltd v Curtis [2008] UKHL 10 (“Majorstake”), the House of Lords had to address the ordinary meaning of “premises” in a different context. Lord Carsell stated the ordinary (rather than technical conveyancing) meaning of “premises” was appropriate:
“… As Lord Wilberforce went on to say in Maunsell v Olins:
“From this it has passed into the vernacular, at least a quasi-legal vernacular, as referring to some sort of property, but not without any precise connotation. A reference to Stroud’s Judicial Dictionary shows that a number of different meanings have been acquired of which the most central appears to be buildings or some kinds of buildings, but it would be far too much to say that there is any prima facie, still less any grammatical, meaning from which one should start.”
The meaning of “premises” may depend on the context. However, in this context, there is no reason to widen “premises” beyond buildings (including any land within their curtilage). Land without any buildings, including public spaces such as car parks are not “premises”.
The appellant responded as follows as regards the meaning of the term “to a person at any premises”:
There is no basis even for HMRC’s inference that the “premises” referred to in Note 5(e) are “the recipient’s premises”. The term “the recipient’s premises” is vague and unclear and begs the question as to whether it means premises owned by the recipient, leased by the recipient, occupied by the recipient or subject to some other kind of interest or right held by the recipient. A phrase this vague would never be used in a taxing statute without definition. No such definition appears because the phrase is simply a creation of HMRC, with no warrant in the legislation itself.
There is no basis on which it could be asserted, as HMRC assert, that the reference in Note 5(e) to “premises” means “the recipient’s premises”. That is not what Note 5(e) says. In the wording used in Note 5(e), the draftsman has in mind the capacity of the container used to store the gas, which must be such so as to preclude the safe storage of more than two tonnes of the gas, thereby ensuring that the supply is within the de minimis limit. Note 5(e) does not state where the container must be. It could be at “the recipient’s premises” (whatever that means) but equally it could be at the premises of another party. If the legislator intended “premises” in Note 5(e) to mean ‘the recipient’s premises’, Note 5(e) would simply have used appropriate wording to make that clear. No such wording was used, which demonstrates that no such restriction was intended.
Even if HMRC are correct on their interpretation of Note 5(e), HMRC’s inference that “premises” means “the recipient’s premises” could only arise, on their own case, from the express words used in Note 5(e): “at which he is not able to store more than two tonnes of such gas”. No analogous express wording appears in Notes 5(c) or (g), and so there can be no justification for treating “premises” to mean “the recipient’s premises” in either of those provisions. In the case of Note 5(g), it would have been very straightforward for such express wording to have been included by the legislator. The fact that this was not done makes it very clear that Parliament never intended the term “any premises” in Note 5(g) to be confined to “the recipient’s premises”.
Further, the phrase used by HMRC of “the recipient’s premises” does not have a clear meaning, so if “any premises” in Note 5(g) was intended to be confined to “the recipient’s premises” as HMRC contend, the legislator would have attempted to define what is actually meant, such as whether it referred to premises owned by the recipient, leased by them or occupied by them. This was not done, which shows that no such restriction on “any premises” was ever intended.
Moreover, “the recipient’s premises” would ordinarily be the recipient’s home. However, unlimited supplies of EV charging to a person’s home, or any other dwelling, is subject to the reduced rate in any event, under Note 6. Therefore, on HMRC’s analysis, “the recipient’s premises” could not mean the recipient’s home/domestic residence. This leads to the result that “the recipient’s premises”, on HMRC’s case, must mean only some unspecified form of non-domestic premises. In reality, most “recipients” would never have such premises as “their” premises, so HMRC’s approach in effect denudes “any premises” in Note 5(g) from having any real practical application. Indeed, on HMRC’s analysis, the supply of electricity to a person at a pub car park could never be subject to the reduced rate unless it was made to the owner of the pub. This kind of bizarre and arbitrary outcome could never have been intended by Parliament, and HMRC are only driven to such an outcome because of their failure to give the term “any premises” its ordinary meaning.
The very fact that, as a result of the operation of Note 6, the term “any premises” in Note 5(g) cannot mean the recipient’s home/domestic residence wholly supports the appellant’s case that “any premises” is well capable of applying to CPs in public places. The appellant’s interpretation does not render the words “entirely otiose”, as HMRC claim. Those words need to be included to make sense of the words in parentheses in Note 5(g): “together with any other electricity provided to him at the premises by the same supplier”.
HMRC’s claims that “premises” does “not include land without any buildings”, that the ordinary meaning of the word “premises” is “a building together with any land within its curtilage”, and that “premises” “does not include public places such as on-street parking” are self-serving and meritless. There is no reason, for example, why the ordinary meaning of “any premises” would exclude anywhere in a public place. Further, the ordinary meaning of “premises” would not encompass a technical term such as “curtilage”. Neither does the ordinary meaning of “premises” require the presence of a building. As a matter of plain and ordinary English, “premises” can consist of a defined outside space such as a car park. For example, when a driver parks at a car park to use a charge point, they are “on the premises”, to use an ordinary English phrase, and are lawfully occupying that parking space as they have a licence to do so based on the terms and conditions that apply to their use of the charge point and the car park. The restrictions which HMRC seek to introduce on the ordinary meaning of “premises” are inventions of their own making and have no basis whatsoever in the legislation.
The appellant also referred to the full passage from Majorstake Ltd at [44] which HMRC referred to in part. The remainder is as follows:
“That ordinary meaning must be governed by the context of the statute in which it is found, for it does not have any universally applicable meaning as a matter of general usage. In the search for the meaning intended by Parliament, one may have regard to what Viscount Simonds said (facing a very different problem in a very different context) in Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436, 461:
For words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use context in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy.
Viscount Simonds added a cautionary paragraph, in which he pointed out that the guiding principles of interpretation and exposition of statutes are stated in so many ways that support of high authority may be found for general and apparently irreconcilable propositions. One other cautionary note to which one should also have regard is the familiar advice that rules of construction are our servants and not our masters. As Thomas Jefferson expressed it in a letter in 1823: Laws are made for men of ordinary understanding, and should, therefore, be construed by the ordinary rules of common sense. (The Writings of Thomas Jefferson, H A Washington, (1854), 7:297.)”
HMRC said that the appellant’s criticisms of their approach are not valid.
HMRC’s approach is not “vague and unclear”. If, as HMRC contends, there is a requirement that the premises are the recipient’s, that is a test of ownership. Leaseholds are simply a form of ownership (which would entail a right of exclusive occupation). It is conceivable that in a different case there might be a dispute as to whether an interest in land was sufficient to describe premises as belonging to the recipient, but this is not such a case. EV drivers have no right in the land at which they receive charging services and the premises do not belong to them in any sense.
The appellant’s only explanation for the phrase “to a person at any premises” is that they are required to explain the words in parentheses. However, the meaning of the words in parentheses is unaffected by the inclusion of the phrase. Moreover, the words in parentheses do not appear in Notes 5(c) or (e), which contain the same phrase.
The contention that a test of a premises belonging to a person is so vague that it would never be used in a taxing statute without further definition is wrong. See for example para 20(5A) and (5B) of schedule 9 VATA which refers to “the premises of a relevant institution” without further definition.
The parties also submitted a number of examples of how the term premises is used in other legislation. I did not find these materially useful given the different contexts in which the term is used.
The appellant submitted that, for Note 5(g) to apply, to calculate whether the provision of electricity from a CP to the same person from the same supplier does not exceed the specified rate, one would calculate how many hours in a month the CP was used by the person, multiply that figure by the power consumption of the CP in kWh and then see whether the total was 1000 or less.
HMRC submitted that the “rate” at which electricity is provided is not necessarily the same as the amount, which in their view is what the appellant’s approach calculates. In HMRC’s view, in order to calculate the “rate”, it is necessary to identify the period over which the electricity is provided at the premises:
Electricity is typically supplied under an ongoing contract by an energy supplier which is responsible for the metering point (and they referred to a number of legislative provisions which govern how such a supplier can operate). Those are the type of supplies which Parliament had in mind when it first introduced the de minimis rules currently found in Note 5(g). A straightforward example is a customer who chooses, for example, Octopus to be their supplier at particular premises. The customer will enter into a contract for Octopus to become the energy supplier until such time as the contract is terminated. If the customer uses 400kWh of electricity per week, they cannot avoid the standard rate by changing electricity suppliers every fortnight. Changing energy supplier frequently might result in no supplier providing more than 1,000 kWh in the calendar month but the amount of electricity which each supplier provides would not be the same as the rate at which the electricity is provided.
This is reflected in HMRC’s long-standing practice of pro-rating the monthly rate to allow a different length of period to be tested. Thus, suppliers may test the rate at which electricity is provided on a daily basis (33 kWh) i.e., where the billing period is not equal to one month, the kWh shown on the bill is divided by the number of days in the billing period.
Therefore, the rate of electricity is not reduced by simply shortening the contractual period of supply. The rate at which electricity is provided is calculated using both the amount of electricity and the period during which electricity is supplied. If there is no period of supply, such that a rate cannot be calculated, then Note 5(g) is not satisfied.
The use by EV drivers of the appellant’s charging services does not entail any ongoing contract for the provision of electricity at any particular premises. Rather, those services are supplied from time to time (on an ad hoc basis) at a range of possible locations. The nature of these services mean that the only identifiable period, during which it could be said that electricity was being provided, is the “charging session”. Such periods are, by design, very short (no more than a few hours) and, consequently, the rate at which electricity is supplied invariably exceeds the limit set down by Note 5(g).
A key flaw in the appellant’s case is to read Note 5(g) as if the draftsman had used the phrase “in the amount of” instead of “at the rate of”. In summary, that approach is wrong in law for three reasons:
Note 5(g) is expressly concerned with the rate of providing electricity at a specific premises. The rate of provision depends on two aspects: (i) the amount of electricity received at the premises and (ii) the length of the period during which electricity was being provided at the premises. If a supplier was only engaged to provide electricity at the premises for a few hours, taking the amount of electricity received during a one-month period does not produce the rate at which electricity was provided (because it was not being provided over the whole month).
The appellant’s approach leads to the insensible and counter-intuitive result that a person could reduce the rate of their electricity consumption (and so sidestep the restriction in Note 5(g)) by simply switching energy suppliers.
It would also mean that UK law breaches EU law (contrary to the purpose for which the rules were enacted) because the de minimis limits in Note 5 would be ineffective. On the appellant’s case, a business could receive unlimited electricity at the reduced rate by using multiple charge points.
In the alternative, some customers have subscription agreements which the appellant says is “in substance” the same as ongoing arrangement for the supply of electricity by an energy supplier. However, this is not a contract for the provision of electricity at any specific premises. Subscriptions are simply a different pricing structure for the same ad hoc supply of charging services at a range of different potential premises. In short, the appellant’s interpretation is contrary to the wording and purpose of the provision. And even if that were not so, the principle of conforming construction would prevent it.
The appellant responded as follows:
There is no flaw in the appellant’s interpretation. The appellant’s approach looks at an amount of kilowatt hours usage in the month – that is a rate. It must be borne in mind that this provision is effectively a simplification measure; supplies falling below a specified threshold are treated as being for domestic use regardless of their actual use to avoid the need for clarification or investigation of actual use in such “de minimis” cases. On HMRC’s analysis the rate of provision of electricity from the charge point in a month in any so-called “ad hoc” arrangement would be obtained by assuming continuous use of the charge point for the entire month. Therefore, even if the charge point was used for just one hour in the month, on their approach the rate of provision of electricity from the charge point is the power consumption of the charge point in kWh multiplied by all 720 hours in a 30-day month, which, conveniently for them, would always significantly exceed the 1000kWh de minimis limit.
HMRC’s self-serving analysis is nonsensical. Even a standard electric kettle consumes 2-3kWh of electricity, so on HMRC’s analysis, the one-off ‘ad hoc’ miniscule supply of electricity in a month to power that kettle at, say, a business premises to make a solitary cup of tea would, despite undoubtedly being de minimis, exceed the de minimis “rate” and prevent the supply from falling within Note 5(g). Indeed, that analysis would essentially render Note 5(g) entirely otiose in the case of any so-called “ad hoc” arrangement, as the one-off use in a month of any single electrical appliance with a consumption of just 1.39kWh or more (1000/ (24 x 30)) for even the briefest of periods would, on their case, always exceed the de minimis rate, again despite in fact undoubtedly being de minimis.
Moreover, HMRC’s analysis flies in the face of their approach to the de minimis limit in every case not involving EV charging at public CPs, in which they consider whether or not the de minimis limit is met by taking into account the amount of electricity in kilowatt hours actually provided in a month, not the hypothetical amount that would have been provided had the actual amount been provided non-stop for the entire month (see their published guidance at page VFUP2310 of their VAT Fuel and Power Manual). There is no justification for such inconsistent treatment. The guidance states this as regards Note 5(g):
“As electricity is often billed in periods not equalling one month, we have agreed with the industry that the de minimis limit may be calculated on a daily basis. In practice a daily rate of 12/365 x monthly rate may be used rounded to nearest whole number. If the number of kilowatt hours shown on the bill – divided by the number of days covered – is 33 or less, the reduced rate may apply. The daily rate should be calculated over the entire period of the bill….
(4) [HMRC then state that in their view the charging of EV’s is standard rated.]
If HMRC are correct, all energy companies are dealing with this incorrectly.
The fundamental basis for HMRC’s case is essentially that it is right that what they call ‘ad hoc’ supplies should effectively be shut out from benefiting from Note 5(g), even if they are in fact de minimis, because they claim that Note 5(g) is intended to apply only to supplies made “as part of an ongoing arrangement” of the type they describe. Factually, many supplies of EV charging are not what HMRC call ‘ad hoc’ but are indeed made as part of “an ongoing arrangement” of “at least one month”, in that the driver has a subscription with the CPO/supplier pursuant to which the driver pays a monthly fee and thereafter pays charges for the kWh units of electricity used. This in substance is the same as the example HMRC give of an “ongoing arrangement”, in that the supplier agrees to provide electricity until such time as the (subscription) contract is terminated, in return for monthly fees that are the equivalent of “standing charges”, “plus charges for units of electricity used”. Therefore, even on HMRC’s own case, many supplies of EV charging would qualify for the reduced rate. There is in fact no material distinction between a supply of electricity in the kind of “ongoing arrangement” described by HMRC and supplies of electricity at public CPs for EV charging. In both cases, as well as the above, the following is true:
the supply is available and ready to be used although there is no obligation to use it;
the supply is made to a person;
the supply itself is not non-stop but can be, and is, turned on and off as required; and
the supply is charged by reference to kWh units used.
Accordingly, there can be no justification for applying different VAT treatment to the respective supplies.
In any case, the key point is that there is nothing in Note 5(g) that supports HMRC’s distinction between “ad hoc” supplies and those made “as part of an ongoing arrangement”. This distinction is an invention of HMRC, created solely for the self-serving purpose of refusing to allow supplies of EV charging to benefit from the plain language of the statute. Note 5(g) nowhere states that its applicability depends on the “period of engagement”/the length of the contract for any supply of electricity. Such an analysis would lead to absurd results, as it would mean exactly the same supply of electricity would fall in or out of reduced rating simply depending on the length of the contract under which the supply was made. For example, on HMRC’s case, the supply of 950kWh of electricity under a three-week contract between the supplier and recipient would not be de minimis, but the same 950kWh supply under a one-month contract would be. There is no basis in Note 5(g) for such spurious and arbitrary distinctions between supplies of the same amounts of electricity.
HMRC’s case fundamentally misunderstands how a rate of supply of electricity is calculated for the purposes of Note 5(g). It is not calculated on the basis of the length of the contract under which the electricity is supplied but on the basis of the amount of electricity in kWh units supplied over one month. Indeed, as already submitted, the very reason Note 5 is known as a “de minimis” provision is because it ensures that relatively small amounts of fuel and power, including electricity, benefit from reduced rating. No relevance whatsoever, whether under Note 5(g) or any other paragraph of Note 5, attaches to the length of the contract under which supplies are made. Once that is understood it becomes perfectly possible and indeed straightforward to calculate the rate of supply for the purposes of Note 5(g), whether that supply is on a so-called ‘ad hoc’ basis or otherwise.
HMRC’s final point ignores the fact that the whole point of Note 5(g) is to deem de minimis supplies as always being for domestic use, meaning that it does not matter whether those supplies are in fact made to businesses or final consumers (as HMRC themselves acknowledge in section 3.2.2 of their VAT Notice 701/19), whether they are in fact made for domestic use or some other purpose (as HMRC acknowledge in VFUP2320), or where they are made. If HMRC do not like this outcome, they should take the matter up with Parliament.
HMRC added that:
It is not HMRC’s case that in order to calculate the “rate” of electricity provision one must assume continuous use of the charge point for a month. Rather, insofar as the rate can be calculated, it depends on the actual time period during which the supplier is providing electricity to the customer at a particular premises. In an ordinary contract for supply of electricity to a business premises, the contract is for a period of at least a month and the occasional use of an electric kettle would not (on HMRC’s case) cause the de minimis threshold in Note 5(g) to be breached. HMRC’s case is consistent with its published guidance. In particular, the appellant cites VFUP2310 which states:
“The recharging of electric vehicles, when using public charging points is always treated as standard rated for VAT. This is because these supplies are made at various places such as car parks, petrol stations and on-street parking, not to a person’s house or building. In addition, these supplies are not usually an ongoing supply to one person where the rate of supply can be calculated.”
The appellant’s “ad hoc” charging services are fundamentally different from a continuous or periodic contract for the provision of electricity to a specific premises.
In the alternative, some customers have subscription agreements which the appellant says is “in substance” the same as ongoing arrangement for the supply of electricity by an energy supplier. However, this is not a contract for the provision of electricity at any specific premises. Subscriptions are simply a different pricing structure for the same ad hoc supply of charging services at a range of different potential premises. In short, the appellant’s interpretation is contrary to the wording and purpose of the provision. And even if that were not so, the principle of conforming construction would prevent it.
The appellant’s position is that it is inconceivable that its interpretation of the Note 5(g) deeming provision breaches EU law, given that:
the Commission would have been aware in around 1989 that the UK had deemed certain supplies of electricity to be for domestic use and so had treated those supplies as being for domestic use even when in fact they might be for business use, but at no stage in the subsequent 30 years did the Commission or the EU more generally raise any concerns that the deeming provision breached EU law; and
at all relevant times, first through Article 12(3)(b) of the Sixth Directive, then through Article 102 of the PVD and finally through Annex III of the PVD (which the tribunal may still have regard to), the EU has in fact permitted Member States to apply the reduced rate to supplies of electricity without any of the restrictions (e.g. as to nature of recipient, nature of premises, necessity for contract of at least one month etc) contended for by HMRC, which makes it unsustainable to claim that the appellant’s interpretation of the deeming provision, which does not seek to impose any of those restrictions, breaches EU law. I note that the fact that Annex III to the PVD was amended in 2022 by Council Directive (EU) 2022/542 to include all supplies of electricity is not a matter to which the tribunal should have regard (see [49] above) except possibly to the extent that it can be taken as informing the EU VAT law principles in place up to 31 December 2020.
Conclusions on correct interpretation of Note 5(g)
In my view, on the plain, natural meaning of Note 5(g), in principle, any supplies of EV charging made by the appellant to drivers, at the appellant’s CPs, fall within the ambit of Note 5(g) on the basis that the appellant put forward. To recap, Note 5(g) applies to a supply of electricity only if (1) it is made “to a person at any premises”, and (2) the electricity supplied to a person at any premises, together with any other electricity provided to him at the premises by the same supplier, was not provided at a rate exceeding 1000 kWh a month.
As regards the first requirement:
On its plain, natural meaning the requirement is that electricity is supplied to an identified person at identified premises. I can see no implication in the wording of Note 5(g) itself or, in the wording of the other sub-paras of Note 5, that this requirement is satisfied only if the relevant premises have some nexus or connection with the relevant person other than being the place at which the supply of electricity is made to that person. Had the legislature intended there to be some further requirement of the type HMRC refer to, the draftsman could no doubt have included wording to that effect but has not done.
In overall terms, Note 5 is intended to allow specified, limited categories of supplies of fuel and power to benefit from the reduced rate of VAT where they may not (at least in part) otherwise qualify as made for domestic use; where the specified conditions are met, the relevant supplies are deemed to be for domestic use regardless of their actual use. The supplies specified in Note 5 essentially fall into two categories:
Sub-paras (a), (b), (d) and (f) capture supplies of the specified fuel/energy which are either not intended for sale by the recipient or are of a limited quantity only.
Sub-paras (c), (e) and (g) capture supplies made by a single supplier which take place at a particular location in a limited amount/at a limited rate: sub-para (c) applies to the supply of piped gas “to a person at any premises” which (together with any other piped gas provided to him at the premises by the same supplier) is not provided at a rate exceeding a specified rate, sub-para (e) applies to the supply of petroleum gas in a liquid state, otherwise than in cylinders, “to a person at any premises” at which he is not able to store more than two tonnes of such gas, and sub-para (g), which we are concerned with here, applies to a supply of electricity “to a person at any premises” where the electricity (together with any other electricity provided to him at the premises by the same supplier) was not provided at a rate exceeding 1000 kilowatt hours a month.” (Emphasis added.)
Given the history of the provisions, and their terms, it is reasonable to suppose that the legislature intended to capture in Note 5 supplies of fuel and power which are not readily identifiable as being for “domestic use”, without investigation and/or monitoring, but which due to their nature, as regards the type of fuel/power and that they are not made for re-sale or due to the limited amounts they are supplied in, are unlikely to be supplied to a person other than a domestic final consumer to what is considered to be a material extent. In sub-paras (c) and (g) of Note 5, the particular restriction is imposed simply on the amount of piped gas and electricity respectively which is supplied by a single supplier to a single recipient at a single premises (as set out below, in the case of supplies of electricity under Note 5(g) in a period of a month).
Contrary to HMRC’s submissions, I can see no reason to interpret the term “to a person at any premises”, where it appears in sub-paras (c) and (e), as meaning to a person at his premises, in the sense of at premises which he controls or has an interest in. Indeed, if anything the contrary indication is present. In sub-para (e), for example, the requirement is that the supply is to the person at premises at which he is not able to store more than a specified amount of gas. The emphasis and restriction, therefore, is upon the amount of gas which the person can store at particular premises and so on the quantity of gas supplied to him at a particular location. There is no indication that the draftsman is concerned with the degree of interest in (whether as owner or otherwise), or control over, the premises which the person has, otherwise than as regards his ability to store gas there. Similarly in sub-paras (c) and (g) the emphasis is on the amount of piped gas and electricity provided by a single supplier to a person at a particular single location. There is again no indication that the draftsman is concerned with the degree of interest in or control over the premises at which the relevant supplies take place otherwise than as regards the person’s ability to receive the relevant supplies of piped gas and electricity there.
Nor can I see any justification for interpreting the words “any premises” (emphasis added), as confined to buildings. On its ordinary meaning, as construed in the immediate and overall context in which it is used, premises means any identifiable property, which may include buildings but also a defined public area such as a car park. Reading Note 5(g) as a whole, in the context of the other sub-paras, the clear implication is that “the premises” are such that a person can be identified as receiving supplies of electricity at that location, which together with other supplies made to him at the same location by the same supplier, does not exceed the specified rate. Hence the premises at which the supply is received must be such that the rate at which electricity supplied by a particular supplier at those premises can be monitored and measured. I can see no implication in this term “any premises” that the premises must otherwise be of a particular kind.
As regards the second requirement:
The appellant’s interpretation accords with the plain natural meaning of this requirement as interpreted in the overall context of the entirety of Note 5(g). On that interpretation for Note 5(g) to apply, the “rate” at which supplies of electricity are supplied to a person at the same premises by the same supplier in a month (which I take to be a calendar month) must not exceed 1,000 kWh in that month.
There is nothing in the simple wording used to support HMRC’s stance that (a) the “rate” at which electricity is supplied to a person is to be calculated by reference to the period during which each supply of electricity is made to that person, such that (b) where there is no-ongoing contract for supplies over a period of time and a supply takes place, as HMRC put it, on an “ad hoc” basis, on a given day only, the permitted rate on that date is 33 kWh, being roughly 1,000 kWh divided by the number of days in a month or, if there is no period of supply, a rate cannot be calculated.
As the appellant submitted there is no indication in Note 5(g) or in the context of the overall provisions of which it forms part that suggests that its applicability depends on the “period of engagement” in the sense of the length of the contract for any supply of electricity. Such an analysis would mean that whether supplies of electricity are subject to the standard rate or the reduced rate would depend simply on the length of the contract under which the supply is made. Hence, if 1,000 kWh of electricity is supplied under a contract for a month, the reduced rate may apply but if the same amount is supplied under a contract for three weeks, the standard rate would apply (as on HMRC’s approach the permitted “rate” of supply of electricity for that period would be only 693 kWh). Rather the plain indication is that the legislature intended to set a limit on how much electricity is provided by a single supplier at a single premises to a single person in a given period of one month.
HMRC consider it proper to impute this meaning simply from the use of the word “rate” and on the basis of the history of these provisions as set out above. In my view, however, the natural and plain meaning is that the “rate” is simply 1,000 kWh per month; the specified permitted amount of electricity is clearly and simply stated to provide the permitted rate. I accept that (a) when these provisions were originally enacted Parliament may well have had at the forefront of their minds supplies made to a person at premises under an ongoing contract by an energy supplier which is responsible for a metering point located at those premises, as that was (and is) typically how electricity is supplied, and (b) the natural and plain interpretation theoretically allows scope for a person to obtain multiple supplies of electricity of 1,000 kWh per month at the reduced rate by changing supplier frequently. However, in my view, that does not provide a reason to read words into this provision as is required for HMRC’s interpretation to operate. Parliament may well also have considered that there is a low likelihood of persons changing electricity suppliers frequently, with the attendant practical difficulties which may be expected, such that that scenario was not a particular concern. Moreover, inevitably as life changes and technology advances, the manner in which particular supplies of fuel or power are made may change from that envisaged when the relevant VAT rules were first enacted. That is not, however, a reason to place a strained construction on the relevant provisions. The question remains whether the new method of supply, such as here of electricity supplied at CPs located in public places, on a fair reading falls within the scope of the relevant provision. As set out above, provisions such as these which provide exceptions to the standard rate of VAT must be construed strictly, but not restrictively, by giving the words a meaning which they can fairly and properly bear in the context in which they are used. In my view, this is a fair and proper interpretation.
I do not accept that this interpretation renders UK law in breach of EU law on the basis that it renders the intended limit in Note 5(g) as ineffective. I note that, as the appellant submitted, rules in the form of Note 5 have been in place since 1989. Accordingly, it has been apparent for many years, on any fair reading of Note 5(g), that the UK deems certain supplies of electricity to be for domestic use although in fact they could be for business use, but at no stage has the Commission or the EU more generally raised any concerns that these provisions breach EU law.
Fiscal neutrality
Given my findings set out above, as based on the plain, natural meaning of Note 5(g), it is not necessary for me to consider the fiscal neutrality argument raised by the appellant. However, I have included brief details of the parties’ submissions in case of relevance on any appeal against this decision.
The appellant submitted that the principle of fiscal neutrality is a principle inherent in the common VAT system (EC Commission v French Republic (Case C-481/98) [2001] STC 919 at [21] and [30]), and is therefore a general principle of EU law which forms part of the retained/assimilated law (see above). Further, the principle of fiscal neutrality underpins both EU law and domestic law jurisprudence in relation to VAT (DCM (Optical Holdings) Ltd v RCC [2022] UKSC 26, [2022] 1 WLR 4815 at [34]):
As a general principle of EU law and/or a principle underpinning VAT EU law and domestic law jurisprudence, the principle of fiscal neutrality must inform the correct interpretation of Note 5(g).
The principle of fiscal neutrality is that similar goods or services, which are thus in competition with each other, should not be treated differently for VAT purposes (EC Commission v French Republic at [22]). In order to determine whether two supplies are similar, account must be taken of the point of view of a typical consumer (Rank Group plc v RCC (Joined Cases C-259/10 and C-260/10) [2012] STC 23 at [43]).
HMRC’s interpretation of Note 5(g) breaches the principle of fiscal neutrality, because a supply of electricity to a person at a premises by a supplier of no more than 1000 kWh a month in order to charge an EV is taxed differently depending on: (1) whether or not the person has some kind of proprietary or occupational right in the premises, (2) whether or not the premises are land and buildings, and (3) whether or not the supply was provided as part of an ongoing arrangement of at least one month in respect of the premises.
From the point of view of the typical consumer, the supply remains the same, regardless of whether or not the features relied upon by HMRC to justify differential treatment are present. Those features are completely irrelevant to the nature of that supply (electricity) and the consumer need that it fulfils (to charge an EV).
The breach of the principle of fiscal neutrality caused by HMRC’s interpretation of Note 5(g) is particularly stark in this case, because it has the effect of disadvantaging less well-off consumers who do not have their ‘own’ premises at which they can charge their EVs. There can be no justification for such an outcome.
The fact that HMRC’s interpretation of Note 5(g) breaches the principle of fiscal neutrality is a further reason why that interpretation should be rejected.
HMRC submitted that there are two key difficulties with the appellant relying on the principle of fiscal neutrality in this context:
The reduced rate is a derogation from the standard rate of VAT which must be interpreted strictly. The CJEU has held that fiscal neutrality cannot extend the scope of the reduced-rate (see Commission v Luxembourg (Case C-502/13) [2015] STC 1714 at [51]). This principle has also been recognised by the Supreme Court in the context of whether digital editions of newspapers should be zero-rated like paper editions (see News Corp UK & Ireland v HMRC [2023] STC UKSC 7 at [62]). Similarly, the Court of Appeal in Greenspace v HMRC [2023] EWCA Civ 106, noted that where Parliament has chosen to list items that benefit from a beneficial rate of VAT, fine distinctions may arise. Once it is established that the reduced-rate does not include the appellant’s supplies because it does not comply with one or more of the conditions in Note 5(g), the appellant cannot rely upon fiscal neutrality to extend the reduced rate to those supplies.
In any event, the distinction between the different supplies highlighted by the appellant is not a fine one. Supplies of ad hoc charging services are materially different to ongoing contracts for the supply of electricity to a premises. Those two types of arrangement are not viewed as similar by drivers and the appellant offers no evidence to the contrary. The fact that an ad hoc charging service and an ongoing energy contract might both be used to satisfy the same need to recharge a battery is insufficient to engage fiscal neutrality.
For the reasons set out above, the reduced rate cannot apply to any of the appellant’s supplies. See also Finanzamt Frankfurt am Main v-Hochst v Deutsche Bank AG (Case C-44/11) [2012] STC 1951 at AG [60] and CJEU [45]. Likewise, food sold in a supermarket might be zero-rated whilst food supplied in a restaurant is not. Schedules 7A, 8 and 9 draw many such distinctions.
Part D – Who were the supplies made to?
In this section I consider who the appellant makes its supplies to. I note that HMRC accepts that in cases where the driver makes contactless payments or pays under “Pay and Charge” or using a QR Code the appellant makes supplies direct to the driver. The dispute is as regards cases where Fuuse or the “third-party app” is involved.
The appellant has separate contractual arrangements in place with Fuuse and each of the “third-party apps”. Accordingly, each of these arrangements fall to be considered separately. Broadly, the parties to a supply are normally determined by the relevant contracts, unless they do not accord with the economic and commercial reality of the relevant arrangements: see Airtours Holidays Transport Ltd v Revenue and Customs [2016] UKSC 21, [2014] 2 All ER 685 at [47]).
In HMRC’s view, under each of the relevant set of contractual arrangements, Fuuse and the “third-party apps” are either acting as principal or as “commission agents” under the rules in s 47(2A) VATA. This provides that:
“Where, in the case of any supply of goods to which subsection (1) above does not apply, goods are supplied through an agent who acts in his own name, the supply shall be treated both as a supply to the agent and as a supply by the agent.”
Hence, in their view, the appellant makes or is deemed to make supplies to Fuuse/relevant app who makes or is treated as making onward supplies to the driver.
HMRC also referred to Bowstead and Reynolds on Agency (23rd edition), sections 1-001, 2-029-2-030 as regards what constitutes an agency relationship under English law. They referred, in particular, to the following statements:
“Agency is the fiduciary relationship which exists between two persons, one of whom expressly or impliedly manifests assent that the other party should act on his behalf so as to affect his legal relations with third parties, and the other of whom similarly manifests assent so to act or so acts pursuant to the manifestation…
Agreement between principal and agent may be for the conferral of authority may be implied in a case where one party has acted towards another in such a way that it is reasonable for that other to infer from that conduct assent to an agency relationship…”
On implied agencies it was stated in the commentary that (1) this represents in an agency context “the obvious proposition that contracts are not always expressly made but often inferred by the court from the circumstances” and (2) “the same principle applies to non-contractual liability” on the authority of Branwhite v Worcester Finance Works Ltd [1969] 1 AC 552 at 587 where Lord Wilberforce said this:
“Whilst agency must ultimately derive from consent, the consent need not necessarily be to the relationship of principal and agent itself (indeed the existence of it may be denied) but it may be to a state of fact upon which the law imposes the consequences which result from agency”.
Both parties referred to the decision in Skatteverket vDigitalCharging Solutions (Case C-60/23) as regards where a commission agency exists in the context of an electric vehicle charging arrangement:
“38 The application of Article 14(2)(c) of Directive 2006/112 requires two conditions to be satisfied. First, there has to be an agency in performance of which the commission agent acts on behalf of the principal in the supply of goods and, second, the supplies of goods acquired by the commission agent and the supplies of goods sold or transferred to the principal must be identical (see, to that effect, judgment of 12 November 2020, ITH Commercial Timișoara,C‑734/19, EU:C:2020:919, paragraph 51)
39 If those two conditions are satisfied, Article 14(2)(c) of Directive 2006/112 creates a legal fiction of two identical supplies of goods made consecutively, which fall within the scope of VAT. Under that fiction, a taxable person who, acting in his or her own name but on behalf of another person, takes part in a supply of services, is deemed to have received and supplied those services himself or herself (see, to that effect, judgment of 12 November 2020, ITH Comercial Timișoara, C‑734/19, EU:C:2020:919, paragraphs 49 and 50 and the case-law cited)
40 In such a scenario, under Article 14(2)(c) of Directive 2006/112, the taxable person in question plays a certain economic role in the supply of goods in question, which enables that person to be categorised as an intermediary acting in his or her own name but on behalf of someone else (see, to that effect, judgment of 19 February 2009, Athesia Druck, C‑1/08,EU:C:2009:108, paragraphs 35 and 36).
41 It should also be noted that it is on the nature of a commission contract for the purchase of electricity for the purpose of charging an electric vehicle that the choice of quality, quantity, time and manner of use of the electricity is up to the user of the charging point and not the commission agent.”
42 In the present case, the possibility cannot be ruled out that the connections at issue in the present case may be analysed as commission contracts for purchase concluded between the operators of charging point networks, as principals, and Digital Charging Solutions, as the commission agent, under which those operators confer on the latter an agency to sell electricity, in its own name but on their behalf, to electric vehicle users. In any event, subject to factual verifications which it is for the referring court to carry out, the connections at issue in the main proceedings may also be categorised as commission contracts for purchase concluded between the users of charging points as principals, and Digital Charging Solutions, as the commission agent, under which those users confer on the latter an agency to purchase from the charging point operators, in its own name but on their behalf, electricity intended to be supplied to them for charging requirements for their electric vehicles.
43 It follows that the first condition of application of Article 14(2)(c) of Directive 2006/112 seems to be satisfied.
44 The second condition of application of that provision also appears to be satisfied, since the supplies of goods deemed to be acquired by the commission agent and the supplies of goods sold or transferred by the commission agent are identical.
As regards the arrangements with Fuuse, HMRC emphasised that (1) in assessing the nature of the relationship, the contractual terms must be given an objective construction, (2) Fuuse is clearly identified in the terms and conditions applicable to its contract with drivers as supplying EV charging services to the driver, there is reference to the fact Fuuse may have to suspend services, the driver is instructed to contact Fuuse if there is a problem and overall Fuuse holds itself out under these terms as supplying electricity to the driver, and (4) the appellant’s terms are not referred to during the contracting process with the driver at the CP and/or on the Fuuse app and so are not part of the contract with the driver and are not relevant.
The appellant submitted that (1), as Mr Maden explains in his statement, Fuuse offers software services to CPOs such as the appellant and is not itself a CPO, (2) Mr Maden explains why the provisions in Fuuse’s contract with the drivers are not correct and how this error came about, (3) Fuuse is not capable of supplying EV charging to the drivers as it supplies only a software-based payment interface, such supply being to the appellant and allows the appellant to contract and interact directly with drivers on the basis that payments from the drivers go straight to the appellant and are not held by Fuuse. Any challenge by an EV driver to charges or any complaint by them must be reported in reality to the appellant, not to Fuuse, (4) Fuuse is not an agent; there is no agency agreement whereby Fuuse agrees to act as an agent for the appellant in making supplies of EV charging to drivers, and (5) the agreement that better reflects the reality is the supply of services agreement between Fuuse (then known as Miralis Data) and the appellant signed by the appellant on 27 July 2021, which correctly describes Fuuse as the supplier of software services to the appellant.
HMRC responded that:
The appellant refers to the contract between Fuuse and the appellant because it suggests that Fuuse is a supplier of software services. This contract does not preclude Fuuse from supplying charging services to customers. In any event, that contract has no bearing on the contractual position for drivers who are not party to it. Fuuse’s terms must be construed objectively and they indicate that Fuuse is the supplier of the charging services.
The appellant’s contention that only the appellant can be the supplier because Fuuse is incapable of making supplies of electricity is misconceived: Fuuse (and the third-party apps) can contract to be the supplier and then use a CPO (such as the appellant) to fulfil their contract to the driver. In other words, the contracts could be arranged so that the appellant supplies to the driver and Fuuse (or “third party app”) is just a collection agents for the appellant, or alternatively the contracts could be arranged so that the appellant is supplying to Fuuse/the “third part app” who in turn supplies to the end customer. Both options are contractually possible and the fact that the appellant owns the charging structure sheds no light on which arrangement has been adopted here.
In light of all the evidence as set out in Part A, I conclude that where a driver uses the Fuuse app to pay for EV charging at the appellant’s CPs, as a matter of economic and commercial reality, the appellant supplies those charging services to the driver. I accept that the appellant’s Terms and the contractual terms stated to apply between Fuuse and the driver do not reflect the economic and commercial reality and do not, therefore, determine the nature of the supplies made under these arrangements. I note, in particular, (1) the evidence of both Mr Heery and Mr Maden that Fuuse’s role was as a software provider to the appellant and that both the appellant’s Terms and Fuuse’s contractual terms with drivers do not reflect the appellant’s and Fuuse’s actual interaction and actual roles as regards the driver; for example, the appellant is the party who deals with any issue the driver has with using the CP, (2) the terms of the agreement between Fuuse and the appellant under which Fuuse agrees to provide software services to the appellant in return for payment (as accords with the invoicing arrangements), and (3) the fact that payment for the EV charging, in effect, is made direct by the driver to the appellant (using the administrative services of Stripe, who contracts with the appellant).
As regards the “third-party apps”, the appellant submitted that:
Some of the contractual arrangements relating to these parties better reflect the reality of the arrangements than others, which is that these operators provide the appellant with services in their capacity as e-mobility service providers.
Some agreements, particularly the agreement between Allstar and the appellant, suggest that it is the operator that supplies the driver with EV charging. The reality, however, is that these operators have no capacity to supply EV charging, as they are not CPOs.
The fact that some agreements may suggest that they supply such charging should not trump the economic and commercial reality, which is that it is impossible for them to make such supplies. Out of the appellant and the third-party app operators, only the appellant, as CPO, has the ability to supply EV charging to the drivers.
If, contrary to the above, the tribunal determines that the “person” the appellant supplies electricity to in a particular instance is an app operator, the appellant believes that the de minimis threshold: (i) would not be exceeded if the “person” it supplied electricity to was determined by the tribunal to be the operator of any “third party app”, and (ii) might be exceeded if the “person” it supplied electricity to was determined by the tribunal to be Fuuse. It is accordingly submitted that if the appellant succeeds on the general issue of the correct interpretation of Note 5(g) and the tribunal determines that the “person” the appellant supplies electricity to is Fuuse, the tribunal should allow the parties a period of time to agree on the question of whether or not the de minimis threshold is exceeded, failing which the tribunal should determine that question.
In my view, as HMRC submitted, the terms of the contracts (as set out in Part B above) between (a) the appellant and the “third-party app”, and (b) the “third party app” and the drivers, in each case indicate that the “third-party app” acted either as principal or as a commission agent in the sense set out in the decision in Digital, in providing EV charging to the drivers. This is underscored by the fact that, under each of these arrangements, the “third-party app” had the scope to make a profit as regards its role due to the pricing arrangements. The “third party app” plainly played an economic role in the arrangements. I do not accept the appellant’s argument (which it also made as regards the arrangements with Fuuse) that only the appellant can be the supplier on the basis that the “third-party” is incapable of making supplies of electricity. Plainly, the fact that the “third-party apps” do not own the charging infrastructure and do not directly receive supplies of electricity from the ultimate supplier does not preclude them from contracting with drivers to be the supplier of EV charging services (as principal) and then using a CPO (such as the appellant) to fulfil their contract or to act as the CPO’s agent in making the supplies to the driver.
Conclusion
For all the reasons set out above, the appeal is allowed in principle in part. I was not provided with information to determine whether, on the findings I have made, only some or all of the supplies made by the appellant fall within Note 5(g). The parties may request the tribunal to determine that issue if they are not able to reach agreement upon it.
This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice.
RELEASE DATE: 26th FEBRUARY 2026