The case of N v. HMRC (CHB) [2021] was an interesting non-tax case of relevance to tax practitioners. It concerned whether a Romanian couple, ‘Mr and Mrs N’, had a right to child benefit under the Child Benefit (General) Regulations 2006 Reg. 23(5). That depended on whether Mr N was a self-employed person in the United Kingdom under European Directive 2004/38/EC.
Mr N was a ‘street musician’; that is a ‘busker’. The Upper Tribunal, therefore, had to consider whether, as a general principle, the occupation of ‘street musician’ could be said to be that of a ‘self-employed’ person for the purposes of the Directive. The Upper Tribunal held, applying the decision of the European Court in Jany and Others v. Staatssecretaris van Justitie, (20 November 2001), that for this purpose self-employment was an activity provided in return for remuneration paid to the provider which satisfied certain other conditions and that a street musician did not provide an activity in return for remuneration because:
‘… his activity did not involve any agreement as to remuneration: there could not have been any common advance understanding or meeting of minds as to the amount of remuneration. The giving of donations by passers-by does not involve a common understanding as to the amount of remuneration provided to the street musician, and there is also a good argument that, for the same reason, it does not involve remuneration at all. It is a matter of pure chance whether the sum provided matches the musician’s expectation’.
