Claimant v The Construction Industry Training Board — 2019

The tribunal heard the appeal on submissions only. Empire Building Systems Limited t/a Essex Maintenance Response challenged a levy assessment of £2,351.50 for the 2016/2017 year issued by the Construction Industry Training Board on 15 May 2018. The appellant said it carried out passive fire protection work, used subcontractors rather than employees, had ceased trading, and received no practical benefit from CITB training or services. The respondent said the levy depended on the statutory scheme and not on whether a particular business received a direct benefit.

The tribunal rejected the argument that the levy could not apply because CITB did not provide training in the appellant's specialist area. Referring to section 1(2) of the Industrial Training Act 1982 and Chappell v CITB 44749/96, it held that the levy was payable if the relevant conditions applied and that there was no absolute duty on CITB to provide training for a specific sector. It also rejected the subcontractor point, finding that workers engaged under contracts for services fell within the statutory definition of "employee" for these purposes.

The tribunal further held that the appellant's cessation of trading in 2019 did not avoid the levy for the relevant period. It considered the levy order provisions and noted that CITB had not sought to impose any later levy. On the core activity issue, the tribunal applied the Board Order 1992 and the authorities in Bobcat Plant Hire (UK) Ltd [2003] EWHC 2383 Admin and Mark Wilkinson Furniture Ltd v CITB CO/1318/00. It found that installing fire protective boards in walls and floors, fire-rated ceilings, and intumescent coatings altered or repaired parts of a building and therefore fell within Schedule 1 paragraph 1(a)(i).

Because the appellant's activities were within the construction industry for levy purposes, ground 4 failed and ground 3 also failed. The appeal was dismissed in full. The tribunal recorded sympathy for the appellant's position but said it had no jurisdiction to deal with any complaint that CITB had not provided training within the appellant's area of work.