Aramark Limited v The Commissioners for HMRC

Facts

Aramark Limited, part of a group headed by the US parent Aramark Corporation, supplied catering and hotel services to the operators of offshore installations on the UK continental shelf. From 8 October 2004 until 11 March 2017 it met some of those contractual commitments using personnel supplied by Aramark US Offshore Services LLC ("OSI") under an Intercompany Agreement dated 1 June 2005: employees who had previously worked for Aramark were transferred to OSI, and Aramark in turn supplied OSI with a broad range of services to enable OSI to supply services back. Because OSI had no relevant residence or presence in Great Britain it bore no secondary Class 1 national insurance contributions, and the arrangement was implemented with the sole object of eliminating that cost. HMRC decided that the personal service of the OSI employees was "made available" to Aramark within the host employer provision, paragraph 9 of Schedule 3 to the Social Security (Categorisation of Earners) Regulations 1978, and assessed Aramark to £6,830,899 plus statutory interest for the period 6 August 2011 to 5 April 2014. The First-tier Tribunal dismissed Aramark's appeal, holding that although "made available" imported no requirement of control, "rendered" did, and that Aramark rather than OSI exercised that control. Aramark appealed with the First-tier Tribunal's permission.