What was the difference between the facts and circumstances of the recent IR35 decisions on radio and TV hosts, Kay Adams, Lorraine Kelly, Christa Ackroyd and Eamonn Holmes?

All three have had their business arrangements tested before First Tier Tribunal (FTT) as follows:

• In Atholl House Productions Limited v HMRC [2019] TC07088, the FTT found that TV presenter Kay Adams was not subject to IR35. She was an independent provider of services carrying on a profession on her own account. The decision was upheld by the Upper Tribunal(UT). HMRC appealed on the basis that the FTT had erred in law when making the decision. The UT found that the FTT had erred in law but still came to the same conclusion, that Kaye Adams was carrying on a business in her own right, which was enough to displace the assumption of employment.
• In Albatel Limited v HMRC [2019] TC07045, the FTT allowed appeals against assessments of £1.2m on Lorraine Kelly’s personal service company. IR35 did not apply, ITV did not employ her, it was buying her brand.
• In Christa Ackroyd Media Limited v HMRC [2018] TC06334, the FTT held that a BBC television presenter was caught by the IR35 regulations. The decision has been upheld by the Upper Tribunal. The appeal related solely to the question of control and the UT held that there was sufficient control over Ms Ackroyd by the BBC for IR35 to apply. 
• In Red, White and Green Limited v HMRC [2020] TC7603, the First Tier Tribunal (FTT) held that Eamonn Holmes' contract with ITV to present Good Morning was caught by IR35. There was mutuality of obligation and ITV had overall control. 

Each case turns on its own facts, decisions made by the FTT do not set a judicial precedent however they can be very useful to follow. UT decisions do bind the FTT, so the cases that have been upheld by the UT have further weight.

Comparison of key features of each case

Who	Kay Adams	Lorraine Kelly	Christa Ackroyd	Eamonn Holmes
Personal Service Company	Atholl House Productions Limited	Albatel Ltd	Christa Ackroyd Media Limited	Red, White and Green limited
End client	BBC	ITV	BBC	ITV
Main programme	The Kay Adams Programme	Lorraine and Daybreak	Look North	Good Morning
Also famous for role in:	Loose Women	TV-am, GMTV, ITV Breakfast	Calendar	ITV's This Morning, Sunrise (Sky News)
Within IR35	No	No	Yes - upheld by Upper Tribunal	Yes
A brand in their own right	Not discussed	Yes	Not discussed	Not discussed
Worked mainly for End-Client	No	Yes	Yes	No
Length of End -Client contract	1 Year	2.5 years	7 years	1 Year
Salient features of relationship with End-Client	Wrote own scripts BBC did not have to consent to non-BBC engagements	Little or no control by end client Wrote own scripts Considered a theatrical artist	The BBC had sufficient control: Had first call on Ms Ackroyd’s time. She attended BBC training sessions Could be told by the BBC who to interview.  Had to obtain the BBC's consent to non-BBC engagements	ITV had control: Mr Holmes could not undertake work that conflicted with ITV contract Fixed fee paid for each show ITV could provide a substitute if needed, but Mr Holmes could not ITV provided travel and clothing ITV had full discretion and control as to editorial content
Clothing allowance paid by End-Client	no	No	Yes	Yes
Other points	Appeal dismissed by UT		Appeal dismissed by UT

 

 

 

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