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

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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