Aramark Limited v The Commissioners for HMRC

Under paragraph 9 of Schedule 3 to the Social Security (Categorisation of Earners) Regulations 1978, the host employer need not exercise direction or control over a worker for the worker’s personal service to be “made available” or rendered for the host’s business. Those are separate statutory requirements, applied to the facts of each arrangement. A tribunal will generally follow an earlier decision of the same Upper Tribunal chamber and depart from it only when satisfied that it is wrong; specialist expertise does not lower that threshold where the earlier decision was made by the same chamber. The provision’s application to commercial subcontracting remains fact-sensitive.

Aramark supplied catering and hospitality services to operators of offshore installations. It arranged for a non-UK group company, OSI, to employ the crew who performed some of that work, while Aramark provided services to OSI under an intercompany agreement. HMRC assessed Aramark for secondary Class 1 national insurance contributions on the basis that the crew’s personal services were made available to Aramark and rendered for its business.

The First-tier Tribunal upheld the assessment, finding that Aramark exercised day-to-day control over the crew. It considered control relevant to both statutory requirements. On appeal, Aramark argued that the Upper Tribunal should depart from its intervening decision in Bilfinger Salamis UK Limited v HMRC, which held that control was not required. It also challenged the FTT’s factual conclusions and its rejection of the argument that OSI provided a complete or composite service. The central issues were whether to depart from Bilfinger and, if control were required, whether the FTT’s conclusions could stand.

1. Appeal dismissed. The Upper Tribunal was not satisfied that its decision in Bilfinger Salamis UK Limited v HMRC ([2026] UKUT 143 (TCC)) was wrong or manifestly wrong. Judicial comity required the Tribunal to follow that same-chamber decision unless convinced it was wrong. The greater latitude that specialist expertise may allow when revisiting a High Court decision did not apply to a decision of the same chamber with the same expertise.

2. On the ordinary meaning of paragraph 9 of Schedule 3 to the Social Security (Categorisation of Earners) Regulations 1978, “made available” does not require the host employer to direct or control the worker. The separate requirement that the service be rendered for the host employer’s business does not import a control condition either. Paragraph 9(c) identifies whose service is in question and when it must begin; “host employer” is defined by the Regulations and does not imply that the host must stand in the employer’s shoes.

3. The later amendments could assist in construing the earlier provision only if it were ambiguous. The Tribunal was not satisfied that the original wording met the high threshold for ambiguity. The 1994 Explanatory Note’s reference to secondment was a short, non-technical description, not an exhaustive statement of the provision’s scope. The statutory language remained decisive. The provision’s application to ordinary commercial subcontracting was fact-sensitive; the Tribunal identified ways the requirements in paragraph 9(a) or (b) might not be met, but did not decide hypothetical cases.

4. The FTT had erred in law by treating host control as necessary. Under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal could set aside the decision, but the error was immaterial: there was no realistic possibility that the FTT would have reached a different outcome under the correct legal approach. The assessment therefore stood. In the alternative, even assuming control were required, the FTT’s evaluative finding that Aramark exercised it disclosed no identifiable flaw, and its conclusion that OSI had not supplied a complete or composite service was not erroneous.

• Upper Tribunal (Tax and Chancery Chamber): Appeal dismissed. The Tribunal found the FTT’s control requirement was an error of law, but held it immaterial to the outcome. [2026] UKUT 348 (TCC) .
• First-tier Tribunal (Tax Chamber): The FTT upheld HMRC’s assessment for secondary Class 1 NICs, finding the crew’s services were made available to Aramark and rendered for its business. [2024] UKFTT 832 (TC).