Invamed Group Ltd & Ors v Revenue And Customs

For customs classification, a mobility scooter falls under heading 8713 only where its objective design shows that it is intended solely for disabled persons, including persons with a non-marginal limitation on walking. Intended use is assessed from inherent objective characteristics. Possible use by non-disabled persons is irrelevant unless the vehicle is designed for them. Suitability is not a separate test, but a description of whether use falls within the intended class. A specialist tribunal may weigh design advantages and disadvantages, and an appellate tribunal cannot interfere merely because it would give the evidence different weight.

Six importer companies challenged the customs classification of electric mobility scooters imported between 2004 and 2007. The First-tier Tribunal initially referred questions to the CJEU and later allowed the importers’ appeals, classifying the scooters under heading 8713: [2015] UKFTT 113 (TC); [2016] UKFTT 0775 (TC). The Upper Tribunal allowed HMRC’s appeal and classified them under heading 8703: [2018] UKUT 305 (TCC). The central issue was whether the scooters’ objective characteristics showed that they were designed solely for disabled persons, or were principally designed for the transport of persons generally.

1. Appeal allowed. The Court of Appeal restored the First-tier Tribunal’s decision classifying the mobility scooters under heading 8713.
2. Headings 8703 and 8713 are not mutually exclusive. The General Interpretative Rules permit more than one heading to apply at the initial stage. Rule 3 operates as a tie-breaker where goods are prima facie classifiable under competing headings, but Rule 1 remains necessary to establish that the goods fall within the relevant headings.
3. The CJEU decision in Lecson (EU:C:2010:823) had to be read in the light of the later decision in Invamed (ECLI:EU:C:2016:362). Invamed materially clarified the approach to heading 8713. The expression disabled persons includes persons affected by a non-marginal limitation on their ability to walk. The duration of the limitation and the existence of other physical or mental limitations are irrelevant.
4. Classification depends on the inherent character, objective characteristics and properties of the goods at the date of import. Intended use is relevant where it is inherent in the product and can be assessed objectively. Possible or actual use by non-disabled persons is irrelevant unless the objective design shows that the vehicle was intended for such use. The references to suitability or unsuitability in Invamed describe the consequence of the intended-use assessment and do not create a separate legal test.
5. The fact-finder must assess whether the vehicle’s design shows that its intended use is restricted to disabled persons. Physical advantages and disadvantages for disabled and non-disabled users may be relevant to that assessment. The First-tier Tribunal was entitled to consider the scooters’ small size, low speed, one-person capacity, tight turning circle and suitability for pavements, shops and indoor use. The Upper Tribunal wrongly substituted its own assessment of the weight of those matters and imposed an over-complicated test requiring material disadvantages to able-bodied users.
6. Under the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal could intervene only for an error of law or a decision not open to the First-tier Tribunal on the evidence. The First-tier Tribunal had not misdirected itself, and its conclusion was lawfully open to it.

• Court of Appeal (Civil Division) allowed the appeal and restored the First-tier Tribunal’s classification under heading 8713.
• Upper Tribunal Tax and Chancery Chamber allowed HMRC’s appeal against the First-tier Tribunal and classified the scooters under heading 8703: [2018] UKUT 305 (TCC).
• First-tier Tribunal initially referred questions to the CJEU: [2015] UKFTT 113 (TC). Following the CJEU reference, it allowed the importers’ appeals and classified the scooters under heading 8713: [2016] UKFTT 0775 (TC).