Government departments and health authorities: Contracted Out Services (COS) Headings: COS Heading 6 - Roads: Section 278 Agreements
Alteration, repair and maintenance of road schemes, except (a) any works carried out pursuant to an agreement made under section 278 of the Highways Act 1980, or (b) works involving construction on land not already used for road schemes
Section 278 Agreements
Section 278 of the Highways Act 1980 allows a Highways Authority (HA) to seek contributions from developers towards the cost of works considered to be for the ‘common good’. For example, these works could include the construction of a new slip road or roundabout.
Any work carried out by a HA under a section 278 agreement is a non-business activity for VAT purposes. This is because the HA has a statutory responsibility under the Highways Act 1980, to maintain the road on which the work is carried out. As such, the construction works form part of the HA’s statutory responsibilities for maintaining the road.
As the HA is not able to claim a refund of the VAT under section 41(3) of the VAT Act 1994, it is a condition of the section 278 agreement that the contributions they receive include irrecoverable VAT.
The HA cannot issue a VAT invoice to the bodies making contributions because it is seeking a reimbursement of costs and not making a supply.
The contributor will be unable to recover any VAT element included in the contribution they pay to the HA. This is because the VAT amount does not relate to a supply, which has been made to you. The contractor carrying out the works will always be making a supply to the HA.
Hybrid Road Schemes
‘Hybrid Road Schemes’ are works comprised of new construction together with improvements to the existing road schemes.
As the hybrid schemes involve two types of work, new construction and alteration, the costs must be separately identified for VAT purposes. This is because some of the VAT incurred on new construction undertaken in the hybrid scheme cannot be recovered.
It can sometimes prove very difficult to separate the actual expenditure on new construction from that on alteration etc. HMRC allows an apportionment of costs to be made based on the terms of the additional contract.
In cases where it is not possible to directly attribute VAT elements, apportionment may be allowed. Hybrid road schemes are an example of a situation where permission to apportion the VAT has been granted.
- Where a health authority alters the layout of existing roads surrounding a hospital for example, in order to facilitate easier and/or safer access to the accident and emergency department. It would also extend to the repair and maintenance of such a road scheme
- Winter road clearing and gritting services