Ulster Independent Clinic v Customs & Excise [2004] UKVAT V18517 (05 March 2004)

EXEMPTION – Health and welfare – Treatment in hospital – Laundry and waste disposal services provided by third parties to hospital – Whether those services qualify for exemption as activities “closely related to” hospital and medical care – No – Appeal dismissed – ECC v French Republic [2001] ECR 1-249 distinguished - Sixth Council Directive art 13A.1(b) - VAT Act 1994 Schedule 9 Group 7 item 4

LONDON TRIBUNAL CENTRE

	THE ULSTER INDEPENDENT CLINIC LIMITED	Appellant

-	and –

	THE COMMISSIONERS OF CUSTOMS AND EXCISE	Respondents

				Tribunal:	STEPHEN OLIVER QC   (Chairman)

Sitting in public in London on 12 and 13 February 2004

Andrew Hitchmough, counsel, instructed by James & Cowper, chartered accountants, solicitors, for the Appellant 

Andrew McNab, counsel, instructed by the Solicitor for the Customs and Excise, for the Respondents

© CROWN COPYRIGHT 2004

DECISION

1.	This appeal concerns a ruling of the Commissioners, contained in a letter dated 11 July 2002, that certain supplies (“the disputed supplies”) made by third parties to The Ulster Independent Clinic Ltd (“the Clinic”) are standard rated and not, as contended by the Clinic, exempt by virtue of Article 13A.1(b) of the Sixth Council Directive (77/388/EEC).

2.	The Clinic is a charitable company.  It runs a medical and surgical hospital.  The disputed supplies are supplies of laundry services and the disposal of clinical and non-clinical waste.

3.	The suppliers are not parties to this appeal and made no representations.  

The facts

4.	The findings of fact are based on the oral evidence of Diane Graham, RGN, RSCN, BSc (Hons.) Health Studies, the deputy matron/matron elect of the Clinic.  She referred to the documents specifically identified below and to the Standards of Environmental Cleanliness in Hospitals produced in 1999 by Infection Control Nurses Association and Association of Domestic Management.  

The supply arrangements : laundry supplies

5.	An agreement between the Clinic and the Ulster Community and Hospitals Trust (“the Ulster Hospital”) covering the three years to 30 June 2003 was put in evidence to show the arrangements for these supplies.  Under this agreement Ulster Hospital agrees to provide the Clinic with “a high quality linen laundering service for the Clinic’s laundering requirements”.  The Ulster Hospital is to collect the Clinic’s laundry each day of the week except Sundays and to return it laundered the next collection day.  The Clinic agrees to place the laundry for collection in appropriate colour-coded bags in accordance with government regulations on health and safety and control of infection. The agreement includes a price list.  This separately itemizes (i) bedding such as sheets, pillows, duvets, blankets, mattresses etc, (ii) towels and face cloths and (iii) clothing, such as gowns for patients, theatre wear for staff, white coats and chefs’ trousers and tunics, nightdresses, shirts, shorts, pyjamas, dresses, trousers and aprons.  

6.	The bagged laundry is placed in cages at the back of the Clinic for collection by the “Linen Services Department” of the Ulster Hospital.  The clean laundry is returned in shelved cages.  

7.	Ulster Hospital invoices the Clinic monthly for the laundry services.  

Regulation of laundry arrangements

8.	The Department of Health and Social Security has issued guidelines (in a letter of July 1988 to the Clinic) recommending methods of (i) categorizing and colour-coding of linen as soiled, fouled, used and infected, (ii) disinfecting infected linen and avoiding cross-contamination and (iii) washing-machine procedures (including heat levels and the times required for the washes).  

The supply arrangements : clinical waste

9.	The provider of these services, Sterile Technologies Inc (NI) Ltd (“STI”) operates from Antrim Hospital services yard.  By an agreement of March 2001 with the Clinic, STI has agreed to provide the Clinic with collection, transportation, processing and disposal services in relation to clinical waste. The waste covered by the agreement is defined to include used sharp instruments, infected or potentially hazardous clinical waste (such as swabs and dressings), laboratory waste and other “offensive material” such as human tissue, blood, body fluids and excretions.

10.	The services to be provided by STI include the provision of clean disinfected yellow wheeled bins to the Clinic’s collection point (i.e. a covered area which the Clinic is to make secure from unauthorized persons, animals, rodents, insects and birds) to enable the Clinic to load them and then for STI to collect them twice weekly.  STI agrees to comply with “all current and future regulatory requirements and obtain all necessary licences, permits and permissions applicable to the movement and treatment from cradle to grave”.  

11.	STI charges £0.85 per kilo for “normal” clinical waste and £1.65 per kilo for “excluded” waste (i.e. “pharmaceutical and cytotoxic waste”).  

12.	STI is registered for VAT and invoices the Clinic periodically for its services, charging VAT on each invoice. (Sample invoices for disposal of normal and excluded wastes were put in evidence.)  

Regulatory controls governing clinical waste

13.	STI has a waste disposal licence for storage and treatment issued by Antrim Borough Council under the Pollution Control and Local Government (NI) Order 1978 (SI 1978/1049).  This permits STI to treat clinical waste in a secure “licensed area” at Antrim Area Hospital using STI Model 500 method of low pressure steam disinfection. The licence contains rules governing the administration of the operations, the competencies of the personnel involved, the opening hours, the record keeping procedures, the types and quantities of waste, site security, site maintenance and STI’s obligation to maintain and submit to the Council a 6-monthly report on its compliance with a published Environmental Management System.  

14.	The Pollution Control and Local Government (NI) Order was made in pursuance of the Northern Ireland Act 1974.  It contains matters such as licensing of disposal of waste, the reclamation of waste, street cleaning and litter, noise, water and defective premises.  

15.	The Waste and Contaminated Land (NI) Order 1997 (SI 1997/2778) made in pursuance of the Northern Ireland Act 1974 regulates waste handling and covers, among other things, hospital premises.  The Clinic is therefore regulated by that Order.  The Clinic is made responsible for ensuring that an approved company, such as STI, is employed to dispose of clinical waste in a manner that enables it to be traced back to source.  To facilitate this, the Clinic uses tags on colour-coded waste bags.  The staff are expected to know the routines and the Clinic has its own Waste Management Procedures Manual.  This directs that “anyone handling waste, no matter at what stage in the waste chain, has a responsibility and a duty of care to adhere to procedures and protocols.  The Manual contains precise rules covering the different types of clinical waste.  

Collection of clinical waste from the Clinic 

16.	STI collects the clinical waste from the secure compound at the rear of the Clinic.

The supply arrangements : non-clinical waste

17.	Wilson Waste Management Ltd of Belfast (“Wilson Waste”) has contracted with the Clinic for the disposal of non-clinical waste.  This service involves the removal of waste material from the kitchens and offices.  

18.	Wilson Waste holds a certificate of registration under the Waste and Contaminated Land (NI) Order 1997.  The certificate records that Wilson Waste’s name is on the register maintained by the Department of Environment under rule 3 of the Controlled Waste (Regulation of Carriers and Seizure of Vehicles) Regulations (NI) 1999.  

The use of the supplies by the Clinic

19.	Laundry processing to the required standards by Ulster Hospital is required by the Clinic as an essential part of its treatment of patients.  The laundering provides a clean environment and reduces the risk of infections acquired in hospitals.  Sheets are changed as and when necessary by nursing staff.  Other laundered items are used as the demands of the Clinic, in the whole range of its hospital activities, require.  The fees charged by the Clinic to patients for their treatment, care and accommodation do not, I understand, make any specific charges for the laundering of items used in connection with the particular patient’s treatment etc.  

20.	The safe and correct disposal of clinical waste is regarded by the Clinic as its legal responsibility under the Pollution Control and Local Government (NI) Order 1978; it discharges this responsibility by using the services of STI, an approved contractor.  The removal of clinical waste ensures that there is a safe environment within which the Clinic may provide care to its patients; the minimization of risk to patients is a professional standard imposed on each profession represented at the Clinic.  Compliance with the Regulations ensures that the environment, the Clinic’s staff and the public generally, as well as the patients receiving care at the Clinic, are protected.  Nothing in the Waste Management Procedures Manual states that waste management forms part of the medical care of patients; nonetheless without the clinical waste disposal arrangements the Clinic could not continue to carry out treatments and operations.  

21.	The services of Wilson Waste in the disposal of non-clinical waste provide an essential step in the orderly running of the hospital.  Waste food and tissues, for example, if not removed may become sources of infestation.  

22.	Before leaving the summary of findings of fact, there are three points to be made.  First, I am satisfied on the evidence that the Clinic could not provide hospital or medical care without a laundry service operating to the standards of those of the Ulster hospital and without clinical waste and non-clinical waste disposal services equivalent in standard to those of STI and Wilson Waste.  All three services are essential to the Clinic in that they enable it to function as a hospital.  Second, those laundry and waste disposal services would not be required unless the recipient was, like the Clinic, an undertaking that made supplies of hospital and medical care.  Third, all the supplies are supplies which the Clinic obtains for and uses in its own day-to-day business of providing hospital and medical care; the corollary to this is that none of those supplies is obtained by the Clinic to further the particular treatment given by the Clinic to any particular patient.  

The legislation

23.	VAT Act 1994 Schedule 9 Group 7 item 4 provides that the following will be exempt:

“The provision of care or medical or surgical treatment and, in connection with it, the supply of any goods in any hospital or state regulated institution.”

Note (8) to Group 7 provides that –

“In this Group “state-regulated” means approved, licensed, registered or exempted from registration by any Minister or other authority pursuant to a provision of a public general Act, other than a provision that is capable of being brought into effect at different times in relation to different local authority areas.

“Act” means –

(d)	an Order in Council under Schedule 1 to the Northern Ireland Act 1974.”

Article 13A.1 of the Sixth Directive provides that:

“Without prejudice to other Community provisions member states shall exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any possible evasion, avoidance or abuse:

(a)	…
(b)	hospital and medical care and closely related activities undertaken by bodies governed by public law or, under social conditions comparable to those applicable to bodies governed by public law, by hospitals, centres for medical treatment or diagnoses and other duly recognized establishments of a similar nature.”

The case for the Clinic in outline

24.	All three supplies are “closely related activities” within Article 13A.1(b), i.e. activities closely related to the Clinic’s principal supply of hospital and medical care.  The question whether a supply qualifies as a “closely related activity” is to be determined by asking whether it is a means of better enjoying the relevant principal supply.  This follows from the opinion of the Advocate General (Stix-Hackl) in Christoph-Dornier-Stiftung für Klinische Psychologie v Finanzamt Giessen (Case C-45/01), at paragraph 37, endorsed by the Court in paragraph 34 of its judgment and adopted by the Advocate General (Fennelly) in paragraphs 29 and 30 of his opinion in EC Commission v French Republic (Case C-76/99) [2001] ECR 1-249, (all of which adopted the Card Protection Plan v Commissioners of Customs and Excise [1999] STC 270 test for determining whether a service was to be regarded as ancillary to a principal service and so to share the tax treatment of their principal service).  The disputed supplies are activities closely related to the hospital and medical care provided by the Clinic notwithstanding the fact that the disputed supplies are not made by the Clinic (see the Court in the French Republic case at paragraph 23) and are not specific to the hospital and medical care supplied by the Clinic to a particular patient (see the Court in the French Republic case at paragraph 28).

25.	All three suppliers of the disputed supplies are “duly recognized establishments” as that exemption is determined under the relevant national law.  For this purpose the expression “state regulated institution” in item 4 of Group 7 to Schedule 9 must be read in a sense that (i) does not cause distortion on the basis of legal form alone (Gregg v Commissioners of Customs and Excise [1999] STC 934) and (ii) is consistent with the purpose of reducing the overall cost of providing medical care.  The “private” corporate status of Wilson Waste and STI must not therefore be allowed to interfere with the exempt status of the disputed supplies.  Specifically – 

•	the laundry supply is by the Ulster hospital, a health service hospital, 
•	the clinical waste disposal is by a company, STI, which is licensed under the Pollution Control and Local Government (NI) Order and so is state regulated; and it is physically carried out at the Antrim Area Hospital and 
•	the non-clinical waste disposal is carried out by a company, Wilson Waste, which is licensed under the Waste and Contaminated Land (NI) Order 1997 and is accordingly state regulated.

Case for the Commissioners in outline

26.	Each disputed supply by each supplier is a principal supply to the Clinic of laundry, clinical waste disposal or non-clinical waste disposal as the case may be.  None of the disputed supplies is a supply consisting of an activity that is closely related to health and medical care within Article 13A.1(b).  For a supply to rank as an activity closely related to hospital and medical care it must be to the recipient of the principal supply of health and medical care, i.e. the patient, or, following the French Republic case, specific to that patient in the sense of being closely related to the particular hospital and medical care supplied to their particular patient.  

27.	The statutory instruments authorizing STI and Wilson Waste to conduct waste disposal activities have no particular reference to hospital and medical care or indeed activities closely related to hospital and medical care.  

Conclusions

28.	The key issue as I see it, is this.  Can a supply of services which are not of hospital and medical care by a third party to a hospital, being a supply which is used by the hospital for the general purposes of its hospital and medical care activity but not as part of the particular treatment or care of a particular patient of the hospital, properly be described as an activity closely related to hospital and medical care?  If it can, the question then arises whether the “social conditions” under which those closely related activities are undertaken by “duly recognized establishments” in the sense postulated by the concluding words of article 13A.1(b). 

29.	Focusing on the key issue, is it enough (if the activity is to qualify for exemption as being a closely related activity) that the service supplied by third party to the hospital plays, as here, an essential and integral part in the hospital and medical care undertaken by the hospital?  Or must the third party’s supply be something that is specific to the hospital’s own supply of hospital and medical care to a particular patient?  The decisions of the Court of Justice in French Republic and Christoph-Dornier are relevant.  Those cases are relied upon by the Clinic to establish the proposition that in deciding whether supplies are closely related activities for the purposes of article 13A.1(b) the principles established in Card Protection Plan apply.  See Advocate General Fennelly in French Republic at paragraphs 29 and 30 and Advocate General Stix-Hackl at paragraphs 26 and 37 of Christoph-Dornier.  The Card Protection Plan principle is found in paragraph 30 of the Court’s judgment in that case.  This states that there is “a single supply in particular in cases where one or more elements are to be regarded as constituting the principal service, whilst one or more elements are to be regarded, by contrast, as ancillary services which share the same tax treatment of the principal service”.  The Court goes on to say that “a service must be regarded as ancillary to a principal service if it does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied.”  So here, it is argued for the Clinic, the laundry supplies and the waste disposal supplies are ancillary to the hospital’s principal supply of hospital and medical care in that they are a means of better enjoying that principal supply.  Those supplies are therefore activities closely related to hospital and medical care.

30.	I will examine the facts of the French Republic decision in more detail later. It is enough to say at this stage that the Court in Christoph-Dornier decided that supplies of psychotherapeutic services by non-registered doctors at the Clinic were not closely related to medical care because they were not ancillary supplies: they were, in the Court’s opinion, principal supplies of medical care.  The Advocate General in the French Republic proceedings had advised that because the services in question, i.e. services of transporting medical samples from one laboratory to another, were ancillary to the principal supply of medical care, they were closely related activities.  

31.	To succeed in the argument that the services of laundry supplied by the Ulster Hospital to the Clinic and the services of waste disposal supplied by STI and Wilson Waste to the Clinic are ancillary to the Clinic’s principal supplies of health and medical care (and therefore activities closely related to such care), the Clinic has to confront the Commissioners’ argument that in all the circumstances the laundry and waste disposal supplies are principal supplies in their own right. In the light of the findings of fact summarized above I think that the laundry and waste disposal services are principal supplies. They are services that enable the Clinic to function as a hospital.  They are essential services in every respect; but they are bought in by the Clinic day in day out and irrespective of what sort of health or medical care (if any) the Clinic is at that time providing for its own patients. The bought-in laundry services constitute for the Clinic an “aim in itself”, to borrow the phrase used by the Court in paragraph 30 of Card Protection Plan.  That aim is to have a stock of clean and disinfected laundry to enable it to provide treatment free of risk of infection.  The same goes for the waste disposal services.

32.	Does the French Republic decision point to a different answer?  That case concerns arrangements for the taking and analysing of patients’ samples for diagnostic and treatment purposes.  The sample is taken from the patient at a laboratory convenient to the patient (“lab 1”) and transmitted to another laboratory (“lab 2”) for analysis. Analysis procedures of this sort are governed by French legislation and under this one of two models has to be followed (described by Advocate General Fennelly in paragraph 10 of his opinion):

(i)	There is a “collaboration contract” model under which arrangements exist between the two laboratories.  Lab 1 charges the patient the “full fee” (covering the collection, transmission and an analysis of the sample), but pays to Lab 2 a “discounted fee”.  Lab 1 therefore obtains remuneration in respect of transmission of the sample as part of the difference between the two fees.  The direct provider of that remuneration is, therefore, the patient.  Lab 1 retains responsibility to the patient for all aspects of the service provided.

(ii)	Under the “fixed fee” model the patient is invoiced directly by lab 1 (in respect of collection of the sample) and by lab 2 (for the analysis).  Each laboratory is responsible to the patient for the service it provides.  Lab 2 pays a fixed fee by law to lab 1 by way of remuneration for transmitting the sample.

The French government regarded the whole of the fee charged to the patient under the “collaboration contract” model as exempt, but taxed the “transmission” fee payable by lab 2 to lab 1 under the “fixed fee” model.  

33.	It was “common ground that both the sample-taking and the analysis itself must be exempt from VAT under Article 13A.1(b) of the Sixth Directive” (see paragraph 20 of the decision of the Court and paragraph 20 of the opinion of the Advocate General) and it was not in dispute that both lab 1 and lab 2 were bodies entitled to benefit from the Article 13A.1(b) exemption.  The dispute therefore related “exclusively to the question whether, because of the need to give a narrow interpretation to derogations from liability to VAT for certain transactions, the difference between collaboration contracts and fixed-fee contracts justif[ied], in the later case, making the act of transmitting the sample, as a distinct act, subject to VAT” (see paragraph 20 of the Court’s judgment).

34.	In the French Republic case the Court concluded that the transmission of a sample for analysis purposes from the health care worker (lab 1) who took it to the specialized laboratory (lab 2) was closely related to the analysis; on that basis the transmission should be treated in the same way as the analysis and not subjected to VAT (see paragraph 30 of the Court’s judgment).  The Court referred to the Card Protection Plan test in paragraph 27 but did not explicitly apply it.  Instead it focussed on the feature that the taking of the sample for analysis carried with it the obligation to transmit it to the analyzing laboratory (paragraph 28).  I quote:  

“… where a duly authorized health-care worker orders, for the purpose of making his diagnosis and with a therapeutic aim, that his patient should undergo an analysis, the transmission of the sample, which logically takes place between the taking of the sample and the analysis itself, must be regarded as closely related to the analysis and must therefore be exempt from VAT … (paragraph 24)

… In the present case, the patient is indifferent as to whether the laboratory which takes the sample also carries out the analysis, or subcontracts it to another laboratory but remains responsible to him for the analysis, or, because of the nature of the analysis at issue, is obliged to send the sample to a specialized laboratory.  The obligation, in the last case, to send the sample to a specialized laboratory arises from the need to ensure for the patient that the analysis is as reliable as possible. (paragraph 28)”

35.	Applying that approach here is less easy.  The taking of the sample by lab 1 from patient X is a supply of services to patient X of part of the diagnostic treatment.  The onward transmission is of X’s sample to lab 2 for analysis and “the obligation … arises from the need to ensure for the patient [X] that the analysis is as reliable as possible”.  Thus transmission is related to patient X’s requirement for diagnosis and nothing else.  Here by contrast, laundry and waste disposal are provided by STI and Wilson Waste under contracts directly with the Clinic.  Those services are required by the Clinic to enable it to provide all its hospital and medical services to all its patients.  At the time of supply those contracts with the Clinic will be the only obligations under which the laundry and waste disposal services are provided.  The obligation will not necessarily arise from the need to ensure for patient X that his particular treatment is effective.  Indeed the treatment of some, such as out-patients, may not require laundry or may not produce non-clinical waste.

36.	For that reason I am not persuaded that the French Republic decision requires the conclusion that the laundry and waste disposal services in issue here are closely related to the Clinic’s hospital and medical care activities. At the same time I need to address what the Advocate General (Fennelly) said in the French Republic case in paragraph 23 of his Opinion –

“The notion of “closely related activities” in the context of “hospital and medical care” does not, on its face, call for an especially narrow interpretation.  It is clear that the underlying intention is to ensure that the benefits flowing from hospital and medical care are not hindered by the increase of providing such care that would follow if it, or closely related activities were subject to VAT.”

In this connection the first point made in paragraph 22 above is relevant.  All three services are essential to enable the Clinic to function as a hospital.  Moreover Article 13A.1(b) is said, in the passage just quoted, to exempt activities closely related to health and medical care to prevent the costs of that getting in the way of treatment.  So, should a wider and more generous interpretation be placed on the expression “closely related activities” to secure this result?  

37.	The decision of the Court of Justice in Peter D’Ambrumenil (Case C-307/01) issued on 20 November 2003 suggests not.  I quote from paragraph 52:

“According to the Court’s case-law, the exemptions envisaged in Article 13 … are to be interpreted strictly since they constitute exceptions to the general principle that VAT is to be levied on all services supplied for a consideration by a taxable person … .”

Bearing in mind that the Ulster Hospital’s laundry services, STI’s clinical waste disposal and Wilson Waste’s non-clinical waste disposal services are ordinarily standard rated supplies, a construction of real breadth applied to the expression activities “closely related” to hospital and medical care would be required to transform those supplies, essential though they are, into exempt supplies simply because the recipient is a hospital.  I do not think that this approach can change the conclusion that I have reached.

38.	It was argued for the Clinic that the principle of fiscal neutrality would be violated were the conclusion to be reached that the disputed supplies were not activities closely related to hospital and medical care and so VAT exempt.  All VAT incurred by the government of Northern Ireland on supplies to it (and therefore to “state” hospitals such as the Ulster Hospital) is refunded to the government: see VAT Act 1994 section 99.  Hence, it was said, because VAT is refundable on supplies of laundry and waste disposal services made to the likes of the Ulster Hospital, the Clinic suffers from the fact that it has to incur VAT on them (if it be right that they are not exempt) and has no means of recovery or set-off against output tax.  That argument does not, in my view, assist the Clinic because it does not compare like with like.  The VAT code deliberately places the government of Northern Ireland and its organs such as hospitals into a special funding position.  There is no suggestion in the code that private hospitals might in any circumstances be refunded the VAT charged on the services supplied to them.  I cannot, therefore, see that the difference in treatment requires me to interpret the expression activities closely elated to hospital and medical care in a way that it assists the Clinic.  

39.	For completeness I should add that it was no part of the Clinic’s argument that any of the disputed supplies ranked as the provision of care or medical or surgical treatment within item 4 of Group 7 of Schedule 9.  

40.	Assuming I am wrong so far and the disputed supplies can properly be said to constitute activities closely related to hospital and medical care, the question then arises whether all or any of them were either –

(i)	“Undertaken by bodies governed by public law or under social conditions comparable to those applicable to bodies governed by public law, by hospitals, centres for medical treatment or diagnosis and other duly recognized establishments of a similar nature” (see Article 13A.1(b)) or 

(ii)	Provided “in any hospital” (item 4 of Group 7 of Schedule 9) or

(iii)	Provided by a state regulated institution namely an institution “approved, licensed  [or] registered … by any Minister or other authority pursuant to an Order in Council” under Schedule 1 to the Northern Ireland Act”. (see Note (8) to Group 7).

41.	The Clinic says of the laundry supplies that they fall directly within article 13A.1(b).  They are closely related activities undertaken by the Ulster Hospital.  Apart from their objection in principle that the laundry supplies were not activities closely related to the Clinic’s hospital and medical care, I did not understand the Commissioners to resist the Clinic’s argument on this point.

42.	The clinical waste disposal supplies of STI (which is licensed under the Pollution Control and Local Government (NI) Order) are, say the Clinic, supplies of a state regulated institution.  The UK, with the discretion given to it by Article 13A.1(b), has duly recognized such institutions by bringing them within the class of state regulated institutions found in Note (8). Moreover STI must be classed as an “institution” despite its ordinary corporate status; exemption from tax of an activity is not to be dependent on the legal form in which a taxable person carries on that activity (see the Gregg decision of the Court of Justice at paragraph 20).  The Commissioners’ response is that STI’s licence permitting “clinical waste storage and treatment” is directed as waste disposal and has nothing to do with either hospital and medical care (Article 13A.1(b)) or to the provision of care or medical or surgical treatment (item 4).  I agree with the Commissioners.  Note (A) to Group 7 defines state regulated institutions.  The institution (irrespective of its legal status) must be one in which care or medical or surgical treatment is provided under a licence.  That is the limited way by which the United Kingdom has transposed the expression “duly recognized establishment of a similar nature” in article 13A.1(b).  STI’s licence is to dispose of clinical waste and that is an activity which on no possible construction of the words “care or medical or surgical treatment” has to do with those forms of treatment.

43.	Regarding the non-clinical waste disposal by Wilson Waste the Clinic points to its licence under the Waste and Contaminated Land (NI) Order.  On that basis, it is said for the Clinic, Wilson Waste’s qualifies as a state regulated institution irrespective of its legal status.  For essentially the same reasons apply to STI’s clinical waste disposal services, I do not think that Wilson Waste qualifies as a state regulated institution.  Its registration relates to waste disposal and not to care or medical or surgical treatment.

44.	For all those reasons I dismiss the Clinic’s appeal against the disputed decision.

45.	Finally I should mention that this appeal, which is in all respects an appeal falling within the jurisdiction of Northern Ireland, was heard in London for the convenience of the parties.

STEPHEN OLIVER QC
CHAIRMAN

RELEASED:

LON/02/699