VFOOD4140 - Excepted items: catering: what is catering?

Although Catering is not specifically defined in the VAT law, Note (3) confirms that ‘catering’ includes

a) any supply of it for consumption on the premises on which it is supplied; and

b) any supply of hot food for consumption off those premises.

Notes (3A), (3B), (3C) and (3D) were introduced with effect from 1 October 2012. Note (3A) provide further clarity as to what note (3) means by ‘premises’. Notes (3B), (3C) and (3D) confirm what is meant by the term ‘hot food’. See VFOOD 4220.

Prior to 1 October 2012 we relied on Tribunal and higher court decisions: these tended to look at the ordinary and everyday meaning attached to the word without attempting to give precise definitions.

The Cope and Armstrong cases are two oft-quoted attempts to define the term. The Barry Herbert Cope ([1981] STC 532) case quoted: A popular meaning of the word “catering” is the provision of food incidental to some other activity, usually of a sporting, business, entertainment or social character. Thus it covers food supplied at football matches, race meetings, wedding receptions, exhibitions and theatres…

And in the M Armstrong (1984) VATTR 53 case: Taking the word in its ordinary and popular meaning, we think an ordinary person can recognise catering when he sees it. He sees it in every-day situations where food is provided incidentally to a variety of functions or activities of a sporting, business, entertainment or social character. To give a few examples, as Sir Douglas Frank QC pointed out, it covers food supplied at sporting events, wedding receptions, race meetings and we would add social lunches and dinners, Club and Association dinners, air travel, rail travel and a variety of functions and activities where people foregather for a specific purpose.

The above two historic cases considered that catering usually involved the provision of food incidental to an activity. However, this is no longer an approach supported by more recent cases on the subject. The following passage from the High Court hearing of Safeway Stores ([1997] STC 163) is often quoted in cases concerning catering: ‘I have to say straightaway that I share the reservations expressed by the tribunal in the present case about excessive emphasis being placed on the need for there to be a function or activity involving a gathering of people not assembled together simply for the purpose of having a meal. In my view it is perfectly possible for a supply to be ‘in the course of catering’ when made to a family having a meal together, though in such a case one would tend to expect certain other of the indicia of catering to be present, such as delivery, service at the table or the provision of cutlery and other ancillary articles. In my judgment whether a particular supply is ‘in the course of catering’ is a matter of fact and degree. There will be a range of factors to be taken into account by the body which is making the decision. Those factors would seem to me to include such matters as whether the food is indeed supplied in connection with an occasion or other event; the degree of preparation which remains to be carried out by the recipient is likely to be a relevant consideration, as is the presentation of the food itself-in other words, is the food in a form where one would ordinarily put it on the table with no further steps being taken? One would want to bear in mind whether crockery and cutlery are provided along with the food itself and any other of the usual ancillary items which go with a meal. Whether it is delivered, or not, by the supplier may often be a highly material factor. Whether it is served by the supplier to those eating it, at the place where consumption occurs, will also be a relevant factor. I do not propose to list any more factors. The ones I have listed are not intended to be exhaustive’.

In 2006, the Compass Contract Services UK Ltd (V.19053 & [2006] EWCA Civ 730) case considered the subject of catering. The Court of Appeal judgement upheld the Tribunal decision in this detailed case which followed the principles raised in the above Safeway Stores case.

As you can see, it is agreed that catering involves a supply of food with an accompanying supply of services (the provision of table service, cutlery, of premises or facilities, and so on). However, there is more debate around what level of service has to accompany a supply of food to turn it into a supply in the course of catering: a supply of food in a supermarket, for example, involves a supply of services such as packaging, counter service, preparation; yet few, if any, people would regard that as catering. Contrast that to the typical supply received in a canteen or restaurant and you have the two extremes within which a supply of food may, or may not, be in the course of catering.

Interpretation

A supply of catering is a supply of food which incorporates a supply of services. The paradigm example of a supply of catering is the supply received by a customer in a typical restaurant, where the supply of food relies on the provision of a table, chairs, table service, cutlery, cooking and so on. Another prime example of what the ordinary person would normally see as catering would include what customers receive when using caterers to provide the meal or buffet at an event like a wedding reception. The problem lies in determining at what point a supply of food goes from being an ordinary retail sale of food items or groceries to one of food being supplied in the course of catering.

Generally therefore, to identify a supply in the course of catering, you will need to be able to identify an accompanying supply of services which enhances or facilitates the consumption of the food. The indicators listed under Catering indicators below are a non-exhaustive list that should help to identify supplies of catering.

Note (3) to Group 1 expands the meaning of the term catering for VAT purposes to specifically include supplies of both hot and cold food for on premises consumption and supplies of hot food for take-away. Problems relating to premises, hot and take-away need only be addressed when the situation is not one which falls within the above definitions.

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Catering indicators

See VFOOD4220. For periods after 1 October 2012 when the changes to the VAT Act were introduced. If the precondition; that the food (or any part of it) is hot at the time that it is provided to the customer, and any one of the 5 objective tests are met the supply is considered to be one of S/R catering.

For periods prior to the introduction of the 2012 changes;

If the position of whether a supply is that of catering is still unclear, these pointers should help to clarify the situation.

• Is the supply linked to an event, function or social occasion (for example, is it catering at a wedding reception, party or office function)?
• Does the trader by his trading name or advertising indicate that he is a caterer?
• Is there a menu?
• If an invoice is raised is it on a per person basis rather than per item?
• Is the supply ready to eat without further preparation of the food?
• Is the food presented in a way to make it different from food sold in a supermarket or grocer’s shop?
• Is the supply to the final consumer or a person receiving it on behalf of the final consumer?
• Is the food, whether hot or cold, supplied for immediate consumption?
• Does the trader provide facilities, such as tables, chairs, cutlery, plates, napkins, or condiments, for use of the customer?
• Does the trader have an arrangement in place for areas of tables and chairs to be made available to their customers (even if they do not own or control the area themselves, some traders may pay rent for, or contribute toward the upkeep of, communal areas of seating and tables that their customers can use)?
• Is there an element of service provided to the customer? This could vary from a full waiter / waitress service to simply laying out sandwiches on a platter. The more significant the level of service, the more likely that the supply is that of catering.
• If the food is delivered, is there only minimal preparation required by the customer?

The list is not exhaustive but if the answers are yes to most of these questions then the supply is likely be in the course of catering.

If the answer to any question is no, for example if there is no menu or no invoice has been raised, the supply may still be in the course of catering depending on the facts of the individual case.

It is necessary to take into account all the services that are supplied and look at the transaction in the round as no one factor will be determinative on its own.