Sha/23402 Appeal Against Nhs Commissioning Board

27 July 2021 Arena Point Merrion Way REF: SHA/23402 Leeds LS2 8PA APPEAL AGAINST NHS COMMISSIONING BOARD ("NHS ENGLAND") DECISION TO REFUSE AN Tel: 0203 928 2000 APPLICATION BY NACAD 8 LTD FOR INCLUSION IN Fax: 0207 821 0029 THE PHARMACEUTICAL LIST OFFERING Email: [email protected] UNFORESEEN BENEFITS UNDER REGULATION 18 AT THE PREMISES OF GLEBE MEDICAL CENTRE, CHURCH ROAD, HARRIETSHAM, MAIDSTONE, KENT, ME17 1AP (BEST ESTIMATE)

REF: SHA/23412

APPEAL AGAINST NHS COMMISSIONING BOARD ("NHS ENGLAND") DECISION TO REFUSE AN APPLICATION BY JACASH LIMITED FOR INCLUSION IN THE PHARMACEUTICAL LIST OFFERING UNFORESEEN BENEFITS UNDER REGULATION 18 AT HARRIETSHAM, MAIDSTONE, KENT ME17 (BEST ESTIMATE)

1 Outcome

1.1 The Pharmacy Appeals Committee (“Committee”), appointed by NHS Resolution, confirms the decision of NHS England, therefore the applications are refused.

A copy of this decision is being sent to:

Mr Morley on behalf of NACAD 8 Rushport Advisory LLP on behalf of Jacash Limited Len Valley Practice Kent LPC PCSE on behalf of NHS England

NHS Resolution is the operating name of NHS Litigation Authority – we were established in 1995 as a Special Health Authority and are a not-for-profit part of the NHS. Our purpose is to provide expertise to the NHS on resolving concerns fairly, share learning for improvement and preserve resources for patient care. To find out how we use personal information, please read our privacy statement at https://resolution.nhs.uk/privacy-cookies/primary-care- appeals/

REF: SHA/23402 Arena Point APPEAL AGAINST NHS COMMISSIONING BOARD Merrion Way Leeds ("NHS ENGLAND") DECISION TO REFUSE AN LS2 8PA APPLICATION BY NACAD 8 LTD FOR INCLUSION IN THE PHARMACEUTICAL LIST OFFERING Tel: 0203 928 2000 UNFORESEEN BENEFITS UNDER REGULATION 18 AT Fax: 0207 821 0029 THE PREMISES OF GLEBE MEDICAL CENTRE, Email: [email protected] CHURCH ROAD, HARRIETSHAM, MAIDSTONE, KENT, ME17 1AP (BEST ESTIMATE)

REF: SHA/23412

1 A summary of the applications, decision, appeals, representations and observations are attached at Annex A and Annex B.

2 Site Visit

2.1 Owing to the Covid 19 Pandemic the Committee was unable to attend the site as a Committee (together) however, following a detailed discussion on its approach each of the Committee members attended the site and conducted their own assessment. Each attended on different days, at different times and in different weather giving a wider understanding of the geography and areas within this application. The following is a summary of their observations from all three visits.

2.2 Committee members approached Harrietsham on the A20 from the West and observed the village from the Harrietsham boundary notice. The village was a ribbon like development constrained to the South by the M20 and by the railway to the North. The village is bisected by the very busy A20 road, running West to East, with spurs of residential housing to both sides of the main road. In all the village is approximately 2Km in length. There appeared to be three areas of fairly recent housing development, by appearance some two to three years old all complete and all with established gardens. One to the west edge of the village north of the A20, one adjacent to the Co- Op, south of the A20 and a third opposite the end of Church Road. The papers indicate the aggregate of these three developments as 324 dwellings and there seemed to be no reason to disagree with this. There is a fourth area of development, Bluebell Walk, at the east end of the village comprising 58 dwellings, all completed and only one appeared currently available to purchase. All four developments are of a high standard with adequate allocated parking or individual garages

2.3 From the Western approach and accessing the village on West Street near the site of the new primary school the Committee observed the new development at the western extreme of the village. This consists of well-designed and well-built detached and semi- detached homes. All had dedicated parking spaces. All appeared to be occupied. There were no shops or facilities and no bus-stops. It appeared to be a commuter dormitory built around car use. There were bus-stops on either side of West Street but despite the school there was no controlled pedestrian crossing or island refuge. Continuing east along West Street there is a Post Office and Village Store with a bus-stop outside. This area is older with smaller but uncrowded houses built along the main road with

small streets either side. The railway station is north of the village and provides a ‘stopping’ service to London Victoria taking 1hr20min via Maidstone. There is also a bus service to Maidstone along the A20. The village has some inclines and the pavements are of adequate quality although narrow in places. There is a railway station, a pub and an Indian restaurant.

2.4 Continuing east on the A20 opposite the large Co-Op store the road is on an incline up to Church Road just before the railway bridge. Church Road is narrow and it was dark under the railway with no pavement. The dip under the railway is steep thereafter it is reasonably flat albeit there is a slight upward incline to the Glebe Medical Centre situated behind the village hall. The medical centre was a purpose built surgery and has adequate parking. There is additional parking for the hall. There are a few smaller houses in Lakelands and Harrison drive and several large, gated homes. At the time of the Committee visits the medical centre appeared to have been repurposed as a Covid vaccination centre. One Committee member observed a notice on the door indicating that prescription requests could be posted through the letterbox and the medication collected from the Lenham surgery. There appeared to be about a dozen such notes awaiting collection. For another member the centre was operating as a vaccination centre and appeared busy.

2.5 Committee members approached the site of the Jacash application from two directions. One returned to the A20 and continued east along the road, a journey of about 1km. Another travelled along Marley Rd past the church and then right (south) down Church Lane through an older, more run-down area with smaller houses. There were no facilities save for the churches and the Kingdom Hall.

2.6 All the properties at the Jacash application site appeared to be occupied and in use by either Clarendon Homes or Kent Cosmetics. The properties have a carpark to the front and railway to the rear. The approach to Clarendon House was rather unkempt and has a vegetable plot to the side.

2.7 A Committee member who had been observed looking around the site was approached by two gentlemen, one from each company, asking what the member was doing. Having explained in the most general terms, both were unaware of any proposed change of use. They indicated the shortest walking route to the Glebe surgery was across the A20 [not for the fainthearted], down Church Lane, turn left into St. Welcume’s Way and via a footpath. The unsigned footpath was paved and had one streetlight. The distance was again just shy of 1Km. The pavements were uneven and there were many parked cars.

2.8 There is a refuge to cross the road which, although straight and affording good vision in both directions is a fast and ‘unwelcoming’ road to walk upon. Pulling out of the entrance involved a short delay. There are bus-stops either side of the road for the Ashford – Maidstone route. Continuing east one arrives at the at Bluebell Walk (Bellway Homes) development. Various signs suggest it is 80% occupied, but which appeared now to be almost 100% sold. It has wide well-maintained roads and pavements but again no facilities and is clearly a commuter dormitory.

2.9 The A20 to Lenham rises for much of the way. It is around 2.75k from Harrietsham to Lenham. There are some wide and adequately maintained pavements but other areas are narrow and ill maintained. It is a fast road with no shelter from elements or traffic and not a road one would choose to walk or cycle on. The Jones Housing estate en- route is similar to others but not as advanced in terms of building completion and it comprises smaller houses. Maidstone Road leads down into Lenham. Some parts are without a footpath, others have a steep and narrow path. The village centre is compact and charming with several shops and cafes (eg a Co-Op, Post Office, library, fish-bar, bakery, two pubs, solicitors’ office, estate agents, dental practice, chiropodist) and the Saxon Warrior Pharmacy housed in a very ancient timbered building. There is a small carpark 100yds from the centre but one has to cross the road for a pavement. There is parking in the village centre but that clearly gets busy. Lenham looked busy and

prosperous unlike Harrietsham which, apart from the new bolt-on estates looked rather down at heel. The pharmacy was small from the outside but is much larger inside. Access was not level and the pavements were narrow. Overall Lenham was a small county village with old uneven and narrow pavements.

2.10 The Len Valley Surgery is about 0.7Km outside the village centre by car, a footpath reduces the distance and takes 5-6 minutes to walk. It is a very large purpose built surgery co-located with the Community Centre and shared car park of around 100+ spaces with 8 disabled spaces near the surgery entrance. It is open from 8-30 a.m. to 6.30p.m. Monday to Friday, with one hour closure over 1 – 2p.m.. A small white delivery van marked ‘Len Valley Surgery’ was in the staff parking area.

2.11 Returned west along the A20 to the Co-Op and new estate behind, this comprised smaller modern smaller housing and was slightly more cramped than other sites. No other facilities were apparent.

2.12 The Committee was aware of but did not visit the several other pharmacy providers mentioned in the papers since they are all at least 5 miles from Harrietsham. It would appear the nearest pharmacy offering late evening and Sunday services was at Morrisons, Maidstone 5.9 miles away.

2.13 The Committee’s overall impression was of two very separate villages. Harrietsham being rather more down at heel with some bolt-on commuter estates. It is cut into four by the A20 and the railway. Lenham has far more shops and facilities and appeared more affluent. It had a centre and a hub of activity around that centre. Access to the shops required navigating narrow pavements. The Committee would not expect patients to walk or cycle any length of the A20. Crossing it required caution and some may decline even this. Whilst some shopping may be done by Harrietsham residents at the Co-Op and the other convenience store opposite this or some of the shops in Lenham, larger shopping trips would require travelling to Ashford or Maidstone or online shopping. The Jacash application site did not appear to be immediately available for use. The Glebe medical centre was tucked away in the older north east section of the village between a cricket pitch and a football field. It appeared to be a small establishment with little room for expansion. Apart from nearby residents who may walk from the northeast Quadrant of the village most people would drive there. The Glebe being the site of the Nacad application this too appeared to be not immediately available for use. (It is a best estimate location but the site was confirmed in the hearing.) The Saxon Warrior Pharmacy is on a busy street corner with no controlled crossing and poor access for disabled patients. The Lenham Surgery is outside the village centre, as previously described, but is a modern facility with good parking including several disabled spaces and accessibility with an entrance ramp.

2.14 A summary of the above observations were provided to those in attendance. They were invited to comment upon them. No comments or observations were made.

3 Oral Hearing Submissions

3.1 Following short submissions it was agreed that the applications should be heard in the order received.

Application SHA/23402 (the NACAD 8 application)

3.2 Mr Morley provided written submissions to the Committee which he read through highlighting various paragraphs. The full submissions are as follows.

1. We of course rely on our submissions; we appreciate the panel will have read carefully all the bundle and will have had the opportunity during their site visit to see for themselves the application site in general and the significant Harrietsham development in particular.

2. That this appeal relates to a de novo determination for application for grant of consent for inclusion in the Pharmaceutical List offering unforeseen benefits. 3. For the sake of clarity on behalf of myself sole director I am the sole principal in both the application and the body corporate making the application i.e. NACAD8. 4. It is my intention that we will see this application through to opening and establishment as a semi-retirement project. This process we accept is a long term commitment. No other party has any financial interest in this project. This project is independent of Len Valley Medical Practice. No member of this practice is a Director or shareholder of NACAD 8. 5. It is not in dispute that the locality is rural (controlled) and although the number of residents is currently modest the extensive house building will significantly increase the demand for both Medical and Pharmaceutical Services in Harrietsham. 6. It is not in dispute that there are any Pharmaceutical Providers close enough to be able to provide Pharmaceutical Services other than the pharmacy in Lenham to all the residents of Harrietsham and the surrounding catchment area [sic]. The nearest pharmacy Saxon Warrior in Lenham is nearly two miles by road away with very limited parking and difficult disabled access. 7. We of course have at least 12 months and possibly 15 months with the discretionary extension before the consent (if granted) expires which will allow for further development and marketing by ourselves to ensure economic stability of this small pharmacy. 8. We would say that the determination made by NHS England on 22nd September 2020 which is the subject of this appeal was incorrect and NHS England have misdirected themselves. 9. It is necessary for the benefit of persons with protected characteristics and for access to Pharmaceutical Services for a grant to be given in the locality of Harrietsham. We have defined sub groups of people with protected characteristics as families with young children, the physically and mentally disabled as well as the elderly. These cohorts may be resident in Harrietsham, visiting Harrietsham or resident in the surrounding catchment areas. Perhaps most importantly a NACAD 8 owned pharmacy in Harrietsham would offer genuine choice to residents of Lenham. 10. We see the Pharmaceutical Services provided by our pharmacy being taken up by three cohorts of patients: i. Existing residents of the villages in the catchment areas of Harrietsham and Lenham which are all rural without the benefit of a medical or pharmaceutical provider. ii. Patients of Harrietsham. iii. Patient’s resident in Lenham. 11. Why a pharmacy is needed at Harrietsham  It is not disputed that there is an inadequacy of pharmaceutical services in Harrietsham.  Whilst the dispensing service from Harrietsham has a good reputation, dispensing doctor pharmaceutical services relate to dispensing only and there is a complete absence of a full range of pharmaceutical services  The pharmacy will have the advantage of being collocated at Glebe Medical Centre making access convenient and reducing carbon omissions  The pharmacy will offer a comprehensive and robust delivery service to patients of all medical practices.  The nearest existing pharmacy, Saxon Warrior, only offers a limited delivery service on request for Harrietsham patients.  It is difficult for Harrietsham patients to access pharmaceutical services at Lenham. Many patients have to access other pharmacy services from local towns where community pharmacies are situated.  The establishment of the community pharmacy at Glebe Medical Centre with a fair rental would assist the precarious financial status of Glebe Medical Centre. Branch surgeries have been closing throughout Kent and the establishment of a collocated pharmacy will prevent this. 12. Why NACAD 8’s application as compared to that of Jacash should be preferred.

 Jacash’s application does not offer a genuine choice of pharmacy provider as Jacash owns Saxon Warrior pharmacy the nearest community pharmacy to Harrietsham.  Len Valley Practice have had great difficulty working with Jacash’s existing pharmacy Saxon Warrior, and have had severe professional difficulties. This does not give confidence in Jacash’s potential offering at Harrietsham  On the other hand, the practice already has a strong working relationship of the highest professional standard with Mr Morley the sole Director of NACAD  The proposed location of Jacash’s application on the other side of the major arterial road, the A20, will cause patients considerable difficulty by way of access and double journeys, as well as raising the carbon footprint.  On the other hand, if NACAD 8’s application is granted it will be collocated at Glebe Medical Centre. 13.(i) The patient list at the practice continues to grow. At the time of NACAD 8’s application (late 2019) the patient list was 9374. As at March 2021 it was 9722. (ii) We believe the panel should be alerted to the impact of Covid 19 and the strain on NHS services which could continue well into the future. A lesson from the past 14 months or so is that having NHS and pharmaceutical services locally available is really important - not only for the convenience of patients but also to minimise unnecessary travel. Summary We would say it is necessary for the benefit of persons with protected characteristics namely families with young children, the physically and mentally disabled as well as the elderly, for access to Pharmaceutical Services, for a grant to be given in the locality of Harrietsham. Our application will provide better access to Pharmaceutical Services for a significant area surrounding the villages of Lenham and Harrietsham as well as Lenham and Harrietsham itself. We are not claiming innovative services so we would say that our application meets two of the tests outlined in the Regulations. Conclusion We would say: That the determination decision by NHS England was incorrect to refuse consent for NACAD 8 to join their Pharmaceutical List at Harrietsham. NHS England therefore misdirected itself. That there is nothing adduced in the bundle that would persuade the panel that NHS England’s determination to refuse consent to us the applicant was correct. We therefore respectfully request that on at least the balance of probabilities the panel in their report to the Authority should state and recommend that the Authority should grant the appeal before them by NACAD 8 Limited against the decision of NHS England in the above matter. We invite them to do so.

3.3 Mr Morley concluded by thanking the Committee and then answered questions. He was asked ‘why would it be more convenient than the current arrangement to have a pharmacy in Harrietsham since this would necessitate a patient from the Lenham surgery travelling to the Glebe for a prescription to be dispensed?’ He responded that the reverse could also be argued. He was asked whether the pharmacy would benefit the finances of the surgery and said that the rent would benefit the surgery and help to keep it open.

3.4 Dr Hagan interjected that the practice does not receive any funding to maintain the branch surgery. They have always relied upon the dispensing income to keep the Glebe branch surgery open. It was pointed out that a surgery cannot rely upon pharmaceutical income to maintain a surgery. Dr Hagan said that he was aware of the regulations but that the wider picture was the income was part of the practice turnover. They looked at all their income. He said the Glebe premises were rented from the local parish council and that they would rather maintain the current arrangements. It was pointed out that dispensing services and pharmaceutical services are quite separate and he responded that the main issue was providing a service to patients. They see the patients and then provide their medication. A pharmacy in the premises would at

least maintain that service whereas the Jacash pharmacy would necessitate patients crossing the A20. He maintained that the dispensing income is part of the practice economics and helps to support the branch surgery. He said that the loss of the income to the practice threatened the viability of the branch surgery and pointed out that other practices nearby had closed their branch surgeries. The practice was unusual in maintaining this service. They wished to keep it.

3.5 Dr Hagan was cross-examined by Mr Daly and confirmed that he did not see a need for a pharmacy and that the practice would continue dispensing. If there had to be one they preferred the Nacad application to the Jacash application. Mr Daly suggested that the practice was Mr Morley’s client (asserting that in reality the Nacad application was the practice’s application) however Dr Hagan said that they had not paid Mr Morley to apply rather they approached him for his advice regarding the Jacash application and this was his response.

3.6 In relation to one additional question Dr Hagan advised that the practice was looking at implementing a “pharmashelf-24” service which was similar to Amazon lockers and would allow patients to access their prescribed medication at all times.

Application SHA/23412 (the Jacash Limited application)

3.7 Mr Daly started by confirming this was an application pursuant to Regulation 18 offering improvements or better access. Although it looked like the Nacad application came first that was not so. The Jacash application was submitted first but was delayed due to a rurality review. That took a year to determine and, once interested parties were notified of the decision the surgery contacted Mr Morley and he put the Nacad 8 application in. He said that the Jacash application was in response to an identified need. The Nacad application was a response to Jacash. Nacad applied with marginally longer hours so Jacash withdrew and then resubmitted. Mr Daly inferred that the Nacad application was not made in good faith.

3.8 When looking at Harrietsham Mr Daly observed that it was classified as part of the Maidstone district with 127,000 residents. Harrietsham was classified as one of five ‘rural server centres’ which both attracted and provided for residents from the surrounding area but unlike the other four it did not have a pharmacy. He said the existing services were well used and that Harrietsham was growing quickly including in commercial businesses. However he said that patients do not simply attend a pharmacy because of other shops and that the application should be granted due to the lack of services. He said that patients at Jacash pharmacy had complained about the journey from Harrietsham to Lenham and felt left behind. Mr Daly called two witnesses who emphasised that they were not against the surgery but would like a pharmacy.

3.9 Mr Daly’s first witness, Mr Whittall said that the services offered by Dr Hagan and the practice team were excellent. He said he had lived in the village for 41 years and had always wanted a pharmacy for all the other things not covered by dispensing. He would like to see a full 6-day per week pharmacy since, now he was approaching 80, it was more difficult to get to Lenham. Car was fine but the train and walking was difficult. He said the A20 was busy and he would not like to ride or walk along it but the speed limit had been reduced and pointed out the light-controlled crossing at the Co-Op. He said all his friends would welcome a pharmacy for all the other wants such as plasters, creams, razors and suchlike. He did not want to take income from the practice but did want a pharmacy. Mr Ford echoed the above and said he was delighted by the practice service. He would have supported ‘their’ application if asked. He said a pharmacy would make life better for Harrietsham residents. He said he used the patient ‘app’ and collected medication at Saxon Warrior in Lenham since he worked in London.

3.10 Dr Hagan said they wanted to avoid the branch surgery closing as had happened at Hollingborne. They covered patients over 100 square miles with Lenham being where

the majority lived but Harrietsham was a sizeable village. He said that everyone had an input to services and they wished to continue the services they provided.

3.11 In answer to questions Mr Whittall said he would not be affected if the Glebe practice closed since he collected prescriptions from Lenham. However, he could collect from the Glebe, albeit not Saturdays. He saw the 24hr collection service as clever and thoughtful. Mr Whittall did not appreciate the issue of losing the Glebe branch surgery. Mr Ford said he did not think it was beneficial to gain a pharmacy but lose the surgery. Mr Whittall said he would not buy over the counter items from the Co-Op since he did not shop there on principle.

3.12 Mr Daly said that it was not about OTC supplies but about pharmaceutical services. He said the big difference between the applications and attending at a surgery or a pharmacy was repeat prescriptions. He said that viability of the Glebe was not a real concern and there were no real objections until today. He confirmed that Jacash had agreed terms on premises at the location and submitted that Jacash believed there was a need for a pharmacy, patients supported that view and he said the HWB and LPC did too. He pointed to comments in letters from a range of patients who also spoke of the transport difficulties. He said that demand would increase as more houses were built both in Harrietsham and in Lenham.

3.13 Mr Daly next addressed the issue of electronic prescriptions and said that the Len Valley surgery did not offer EPS. He suggested the reason for that was commercial, namely that the surgery cannot name itself to dispense the prescribed items but the patient can choose another pharmacy. Instead the surgery issues paper prescriptions preventing patients nominating and collecting their items from elsewhere. He said the attitude was clear from the Dispensing Doctors’ Association advice that EPS means repeat prescriptions are ‘lost’ to pharmacies as patients do not need to attend the surgery for repeats, instead the information is sent electronically to the pharmacy. He said it was a deliberate decision to use paper and their dispensary preventing the nomination and use of a pharmacy by patients. The only way for a patient to obtain a repeat prescription was to attend the surgery to get the paper prescription. This, he said, was actively reducing patient choice. Mr Daly continued that a pharmacy in Harrietsham would remove the need to attend the surgery. He said this would not affect the practice income since it issued 21,000 prescriptions per month of which 13,000 are dispensed items. Harrietsham has a population of around 3000 residents who may account for around 3 – 6000 items. He suggested this would not be a ‘catastrophic loss’ to the surgery.

3.14 Regarding choice, Mr Daly said that 95% of prescription items were dispensed by the surgery or by Saxon Warrior pharmacy which indicated that patients did not really have a choice. The reason for that was the non-use of EPS. He said that access required a car since the bus and train services from Harrietsham to Lenham were only every 1 – 2 hours or necessitated a lengthy walk. The delivery service offered by the practice was on Tuesday, Thursday and Friday only and a patient needed to be housebound or receiving care to be eligible. Whilst it may be free for the first delivery, subsequent ones cost £5.

3.15 Looking at dispensing from the Glebe branch surgery Mr Daly said the picture was confused since patients were told they could collect items at Harrietsham but they were actually dispensed at Lenham. Alternatively patients are told to go to Lenham and NHS England were told that the Glebe does not dispense. He said that although it was a rural area there were around 3000 patients and there was no evidence of prejudice. If a period of gradualisation was required three months would be sufficient since the Glebe was not actually operating as a surgery at present.

3.16 When comparing the two applications Mr Daly said that only one should be granted. He said that Jacash had offered an extra 10 core hours per week compared to Nacad. He said that Jacash had premises and referred to a letter from Kent Cosmetics stating that they had agreed terms with Jacash for the occupation of premises. He said the

Nacad application, whilst a best estimate, was clearly intended to be the Glebe but there was no supporting evidence from the Parish Council to confirm any discussions taking place. He submitted that there was in reality no intention to open the Nacad pharmacy. Whilst Mr Morley made the application, the practice would have to give up space and had made it clear they did not want it since it would harm their income. He also questioned who would run it and said the application had no credibility. Mr Daly asserted that the application was being made by Mr Morley, who represented dispensing doctors, with a view to it being refused in order to prevent any further applications in the next five years. He submitted that Mr Morley and the practice would like the Committee to refuse both applications for this reason. Alternatively, he said that Mr Morley had obtained grants in the past but then undertaken not to open pharmacies. He suggested that the Committee was acting on behalf of the Secretary of State for Health and that attendees had a duty not to mislead the Committee. He warned the Committee not to fall into this trap.

3.17 In answer to questions from the Committee Mr Daly said that the issue with EPS meant that patients could not use that service and nominate a pharmacy but had to obtain a paper prescription and would then use the dispensary. He said that patients were not choosing to be dispensing patients rather they were prevented from being anything else. He said that the practice delivery service, whilst a positive, was not free. He said that a change of use is not required for the proposed premises given the changes in planning regulations.

3.18 Mr Morley refuted the suggestion that he would submit a disingenuous application and said that if the application was granted he had every intention of opening the pharmacy. He suggested that any such application would be disregarded for the purposes of the five year rule and Mr Daly conceded that albeit he said it would be hard to evidence. Regarding EPS Dr Hagan said that the service would benefit the practice too. The bar to nominating a dispensing practice which had existed had now been removed. He said that EPS would be helpful for repeat prescriptions. He said their survey had shown that patients liked to pick up their medication from the surgery. He explained that they had not implemented the service simply because with the pandemic there was too much going on and it would have disrupted services. Regarding the delivery service charge he said that there was a fee of £5 which was applied when they first started the service. It was the same as other suppliers but it had never actually been charged since most medication was delivered monthly for free. As to the suggestion that the Glebe was not dispensing. He said that was correct at the time of the enquiry since it was a temporary Covid vaccination centre but ordinarily they do dispense from there. He said that the practice had sought advice from Mr Morley and his advice/response was to make the application. It was not the practice’s application

3.19 Dr Hagan said that the practice was open until 6.30pm but that Saxon Warrior Pharmacy closed at 5.30pm leaving patients obliged to travel to Maidstone or Ashford for medication if it was needed. Regarding leases, he said the Parish Council did not want to get embroiled in commercial decisions but that they were in discussion over larger premises ideally with a dispensary but, if necessary, a pharmacy. He agreed there was a financial element to retaining the pharmacy but there was also a financial gain in obtaining a pharmacy licence. He said that they tried to see Harrietsham patients in Harrietsham some of whom walk to the premises. He said they supported the Nacad application over the Jacash because the practice struggled to work with Jacash and he believed Mr Morley understood dispensing practices. He gave the example of managing chronic disease which he said required coordination and collaboration with a pharmacy. He inferred that this initiative was not wholly successful with Lenham Surgery and Saxon Warrior Pharmacy.

3.20 Mr McLarren, a Harrietsham resident then gave evidence regarding the delivery service. He said that if a patient was out they would leave a note and redeliver. As to OTC items, they were accessible at the Co-Op or at the 24 hour shop attached to the garage on the A20 a mile from Harrietsham. He agreed that he would be happy to buy pharmacy-only OTC items from a pharmacy in Harrietsham and that advice or support

from a pharmacy would be welcome. Dr Hagan observed that they had the services of a clinical pharmacist in the practice but agreed this was different to an ‘on-street’ pharmacist. Ms Shah (Kent LPC) commented on the classification of pharmacy-only items. Ms Sorensen-Bensen (NHS England) rejected the assertion that the NHS Regional Unit always refused applications in Kent. She said they considered the evidence and what patients needed, not what they might like to have. She said there was some support for the idea of a pharmacy in Harrietsham but it had been insufficient to merit a supplementary statement to the existing PNA which would have been a legal obligation if the team considered there was real merit to the idea.

3.21 Mr Daly asked when the HWB last met and whether anyone had interviewed patients in Harrietsham. Ms Sorensen-Bensen said they were working on the new PNA and it was this that determined the need of 2/3000 patients not three interviewees. She said the PNA provides the evidence plus an analysis of sites, complaints and demographics not just three witnesses. She said there was no need identified in the PNA and no changes to that analysis. The new homes in Harrietsham did not merit reconsideration of this. Finally Dr Hagan said that ideally the surgery would like to retain their dispensing rights and for Saxon Warrior to open an extra hour in the evenings.

Closing Submissions

3.22 Mr Daly said that irrespective of the emotive language of today the issue was whether the grant of an application would provide improvements or better access to pharmaceutical services. Factors to consider included reasonable choice which he said was not available to Len Valley patients due to their non-use of EPS. He said that Harrietsham residents had no choice and that was demonstrated by the very low number of patients who went elsewhere to collect their medication. He said he did not criticise the service provided by the practice rather he criticised their failure to provide choice. Whilst EPS had been available for years it had not been implemented. He said the lack of choice was a compelling issue as was the issue of access.

3.23 Mr Morley echoed the suggested lack of choice and, if the Committee agreed with that then the issue was which pharmacy application should be granted. He said his was a genuine application and, whilst he would not work there, he would be actively involved. He said there was no doubt the Nacad application was the better of the two.

4 Consideration

4.1 The Pharmacy Appeals Committee (“Committee”) appointed by NHS Resolution had before it the papers considered by NHS England, together with a plan of the area showing existing pharmacies and doctors’ surgeries and the location of the proposed pharmacy.

4.2 It also had before it the responses to NHS Resolution’s own statutory consultations.

4.3 The Committee had regard to the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 (“the Regulations”).

4.4 There is no dispute that Harrietsham is in a controlled locality and the applications were based on securing improvements or better access to pharmaceutical services in that controlled locality.

4.5 The Committee considered that the correct course was to first consider if the applications must be refused pursuant to Regulation 31. The Committee will then consider if the applications must be refused pursuant to Regulation 40. If the Committee is not so required to refuse the applications, it will consider the issue of reserved location pursuant to Regulation 41. The Committee will then consider the applications under Regulation 18. If the Committee has determined that the Applicants are seeking the listing of pharmacy premises which are in a part of a controlled locality that is not in a reserved location, it will consider the issue of prejudice under Regulation

44 last. The reason for this staged approach and in particular for dealing with prejudice last is that if the applications do not meet the requirements of Regulation 18 the Committee is required to refuse them and prejudice cannot arise. The potential for prejudice only arises if the Committee has concluded that the applications meet the requirements of Regulation 18 and may be granted.

4.6 Depending on the determinations of the Committee in respect of the above as well as taking into consideration of whether NHS England has considered Regulation 50(1), the Committee will then consider Regulation 50(1) Discontinuance of arrangements for the provision of pharmaceutical services by doctors.

Regulation 31

4.7 The Committee first considered Regulation 31 of the regulations which states:

(1) A routine or excepted application, other than a consolidation application, must be refused where paragraph (2) applies.

(2) This paragraph applies where -

(a) a person on the pharmaceutical list (which may or may not be the applicant) is providing or has undertaken to provide pharmaceutical services ("the existing services") from -

(i) the premises to which the application relates, or

(ii) adjacent premises; and

(b) the NHSCB is satisfied that it is reasonable to treat the services that the applicant proposes to provide as part of the same service as the existing services (and so the premises to which the application relates and the existing listed chemist premises should be treated as the same site).

4.8 The Committee noted that the Applicants had stated, in their application forms, that there was no other pharmacy in the same or adjacent premises, so Regulation 31 is not applicable. From its own visit(s) the Committee observed this to be correct. It noted that NHS England had concluded that Regulation 31 was not applicable and further that no party had sought to indicate in subsequent representations that Regulation 31 would require the refusal of this application. Given the information available to the Committee, it determined that it was not required to refuse the application under the provisions of Regulation 31.

4.9 The Committee noted that, if either application were granted, the successful applicant would - in due course - have to notify NHS England of the precise location of its premises (in accordance with paragraph 31 of Schedule 2). Such a notification would be invalid (and the applicant would not be able to commence provision of services) if the location then provided would (had it been known now) have led to the application being refused under Regulation 31.

Regulation 40

4.10 In those circumstances, the applications (which have been made under Regulation 18 of the Regulations) must be assessed against the provisions of Part 7 of the Regulations and, in particular Regulation 40 which reads:

(1) This paragraph applies to all routine applications—

(a) for inclusion in a pharmaceutical list as an NHS pharmacist; or

(b) from an NHS pharmacist included in such a list—

(i) to relocate to different pharmacy premises in the area of the relevant HWB, or

(ii) to open, within the area of the relevant HWB, additional pharmacy premises from which to provide pharmaceutical services, where the applicant is seeking the listing of pharmacy premises which are in a controlled locality.

(2) If the NHSCB receives an application (A1) to which paragraph (1) applies, it must refuse A1 (without needing to make any notification of that application under Part 3 of Schedule 2), where the applicant is seeking the listing of premises at a location which is—

(a) in an area in relation to which outline consent has been granted under these Regulations, the 2012 Regulations or under the 2005 Regulations within the 5 year period—

(i) starting on the date on which the proceedings relating to the grant of outline consent reached their final outcome, and

(ii) ending on the date on which A1 is made; or

(b) within 1.6 kilometres of the location of proposed pharmacy premises (other than proposed distance selling premises), in respect of which—

(i) a routine application under these Regulations or the 2012 Regulations, or

(ii) an application to which regulation 22(1) or (3) of the 2005 Regulations (relevant procedures for applications) applied,

was refused within the 5 year period starting on the date on which the proceedings relating to the refusal reached their final outcome and ending on the date on which A1 is made, unless the NHSCB is satisfied that since the date on which the 5 year period started, there has been a substantial and relevant change of circumstances affecting the controlled locality.

(3) For the purposes of paragraphs (1) and (2), if no particular premises are proposed for listing in A1, the applicant is to be treated as seeking the listing of pharmacy premises at the location which is the best estimate that the NHSCB is able to make of where the proposed listed pharmacy premises would be, having regard to the best estimate given by the applicant under paragraph 1(7)(a)(ii) of Schedule 2.

[ (4) Paragraph (2)(b) does not apply where the NHSCB is satisfied that there are reasonable grounds for believing the person making the refused application was motivated (wholly or partly) by a desire for that application to be refused.

(5) The refusal of an application pursuant to paragraph (2)(b), or regulation 40(2)(b) of the 2012 Regulations (applications for new pharmacy premises in controlled localities: refusals because of preliminary matters), is to be ignored for the purposes of the calculation of a 5 year period pursuant to paragraph (2)(b).]

4.11 The Committee noted that there was no information to suggest that the instant applications were in respect of locations where outline consent had been granted or there had been a refusal for a previous application within the last 5 years.

Regulation 41

4.12 Based on its conclusion above, the Committee went on to consider the applications in light of the remainder of Part 7 of the Regulations and, in particular, regulation 41 which reads:

(1) This paragraph applies to any routine application—

(a) for inclusion in a pharmaceutical list as an NHS pharmacist; or

(b) from an NHS pharmacist included in such a list—

(i) to relocate to different pharmacy premises in the area of the relevant HWB, or

(ii) to open, within the area of the relevant HWB, additional pharmacy premises from which to provide pharmaceutical services,

where the applicant is seeking the listing of pharmacy premises which are in a controlled locality and the NHSCB is required to notify the application under Part 3 of Schedule 2.

(2) If paragraph (1) applies to an application (referred to in this regulation and regulation 42 as “A1”), subject to paragraph (5), the NHSCB must determine whether or not the “relevant location”, that is—

(a) the location of the premises for which the applicant is seeking the listing; or

(b) if no particular premises are proposed for listing in A1, the location which is the best estimate that the NHSCB is able to make of where the proposed pharmacy premises would be, having regard to the best estimate given by the applicant under paragraph 1(7)(a)(ii) of Schedule 2,

is, on basis of the circumstances that pertained on the day on which A1 was received by the NHSCB, in a reserved location.

(3) Subject to regulation 43(2), the area within a 1.6 kilometre radius of a relevant location is a “reserved location” if—

(a) the number of individuals residing in that area who are on a patient list (which may be an aggregate number of patients on more than one patient list) is less than 2,750; and

(b) the NHSCB is not satisfied that if pharmaceutical services were provided at the relevant location, the use of those services would be similar to, or greater than, the use that might be expected if the number of individuals residing in that area who are on a patient list were 2,750 or more.

(4) Before making a determination under paragraph (2) (referred to in this regulation and regulation 42 as “D1”), the NHSCB must—

(a) notify the persons notified under Part 3 of Schedule 2 about A1 that the NHSCB is required to make D1 (and it may make this notification at the same time as it notifies those persons about A1); and

(b) invite them, within a specified period of not less than 30 days, to make representations to the NHSCB with regard to D1 (and the period specified must end no earlier than the date by which the person notified needs to make any representations that they have with regard to A1).

(5) The NHSCB must not make a determination under paragraph (2) in respect of A1 in circumstances where an earlier application which was in respect of the relevant premises and to which paragraph (1), regulation 44 of the 2012 Regulations (prejudice test in respect of routine applications for new pharmacy premises in a part of a controlled locality that is not a reserved location) or regulation 18ZA of the 2005 Regulations (refusal: premises which are in a controlled locality but not a reserved location) applied was refused—

(a) for the reasons relating to prejudice in—

(i) regulation 44(3),

(ii) regulation 44(3) of the 2012 Regulations, or

(iii) regulation 18ZA(2) of the 2005 Regulations; and

(b) within the 5 year period starting on the date on which the proceedings relating to the refusal reached their final outcome and ending on the date on which A1 is made,

unless the NHSCB is satisfied that since the date on which the 5 year period started, there has been a substantial and relevant change of circumstances affecting the controlled locality.

(6) For the purposes of paragraph (5), the “relevant premises” are—

(a) the premises which are proposed for listing; or

(b) if no particular premises are proposed for listing in A1, premises at the location which is the best estimate that the NHSCB is able to make of where the proposed listed pharmacy premises would be, having regard to the best estimate given by the applicant under paragraph 1(7)(a)(ii) of Schedule 2.

4.13 The Committee considered the issue of reserved location for the location of the premises described in the applications.

4.14 Regulation 41(2) is mandatory: it requires NHS England to make a determination regarding reserved location status in circumstances such as these.

4.15 The Committee noted that neither applicant challenged NHS England's position regarding reserved location namely that Harrietsham is not a reserved location. The Committee therefore determined that it should continue to be treated as such.

4.16 The Committee was aware that, depending on its view on reserved location, it may then need to deal with prejudice. However, the Committee considered that prejudice could only arise if the applications meet the requirements of Regulation 18 and may therefore be granted. It therefore next considered whether the applications met the requirements of Regulation 18.

Regulation 18

4.17 The Committee noted that these were applications for “unforeseen benefits” and fell to be considered under the provisions of Regulation 18 which states:

"(1) If—

(a) the NHSCB receives a routine application and is required to determine whether it is satisfied that granting the application, or granting it in respect of some only of the services specified in it, would secure improvements, or better access, to pharmaceutical services, or pharmaceutical services of a specified type, in the area of the relevant HWB; and

(b) the improvements or better access that would be secured were or was not included in the relevant pharmaceutical needs assessment in accordance with paragraph 4 of Schedule 1,

in determining whether it is satisfied as mentioned in section 129(2A) of the 2006 Act (regulations as to pharmaceutical services), the NHSCB must have regard to the matters set out in paragraph (2).

(2) Those matters are—

(a) whether it is satisfied that granting the application would cause significant detriment to—

(i) proper planning in respect of the provision of pharmaceutical services in the area of the relevant HWB, or

(ii) the arrangements the NHSCB has in place for the provision of pharmaceutical services in that area;

(b) whether, notwithstanding that the improvements or better access were not included in the relevant pharmaceutical needs assessment, it is satisfied that, having regard in particular to the desirability of—

(i) there being a reasonable choice with regard to obtaining pharmaceutical services in the area of the relevant HWB (taking into account also the NHSCB’s duties under sections 13I and 13P of the 2006 Act (duty as to patient choice and duty as respects variation in provision of health services)),

(ii) people who share a protected characteristic having access to services that meet specific needs for pharmaceutical services that, in the area of the relevant HWB, are difficult for them to access (taking into account also the NHSCB’s duties under section 13G of the 2006 Act (duty as to reducing inequalities)), or

(iii) there being innovative approaches taken with regard to the delivery of pharmaceutical services (taking into account also the NHSCB’s duties under section 13K of the 2006 Act (duty to promote innovation)),

granting the application would confer significant benefits on persons in the area of the relevant HWB which were not foreseen when the relevant pharmaceutical needs assessment was published;

(c) whether it is satisfied that it would be desirable to consider, at the same time as the applicant’s application, applications from other persons offering to secure the improvements or better access that the applicant is offering to secure;

(d) whether it is satisfied that another application offering to secure the improvements or better access has been submitted to it, and it would be desirable to consider, at the same time as the applicant’s application, that other application;

(e) whether it is satisfied that an appeal relating to another application offering to secure the improvements or better access is pending, and it would be desirable to await the outcome of that appeal before considering the applicant’s application;

(f) whether the application needs to be deferred or refused by virtue of any provision of Part 5 to 7.

(g) whether it is satisfied that the application presupposes that a gap in pharmaceutical services provision has been or is to be created—

(i) by the removal of chemist premises from a pharmaceutical list as a consequence of the grant of a consolidation application, and

(ii) since the last revision of the relevant HWB's pharmaceutical needs assessment other than by way of a supplementary statement.

(3) The NHSCB need only consider whether it is satisfied in accordance with paragraphs (2)(c) to (e) if it has reached at least a preliminary view (although this may change) that it is satisfied in accordance with paragraph (2)(b)."

4.18 The Committee considered that Regulation 18(1)(a) was satisfied in that it was required to determine whether it was satisfied that granting an application, or granting it in respect of some only of the services specified in it, would secure improvements, or better access, to pharmaceutical services, or pharmaceutical services of a specified type, in the area of the relevant HWB.

4.19 The Committee went on to consider whether Regulation 18(1)(b) was satisfied, i.e. whether the improvements or better access that would be secured if the applications were granted were or was included in the PNA in accordance with paragraph 4 of Schedule 1 of the Regulations.

4.20 Paragraph 4 of Schedule 1 requires the PNA to include: “a statement of the pharmaceutical services that the HWB had identified (if it has) as services that are not provided in the area of the HWB but which the HWB is satisfied (a) would if they were provided….secure improvements or better access, to pharmaceutical services… (b) would if in specified future circumstances they were provided…secure future improvements or better access to pharmaceutical services…” (emphasis added).

4.21 The Committee considered the Pharmaceutical Needs Assessment ("the PNA") prepared by Kent HWB, conscious that the document provides an analysis of the situation as it was assessed at the date of publication. The Committee bears in mind that, under regulation 6(2), the body responsible for the PNA must make a revised assessment as soon as reasonably practicable (after identifying changes that have occurred that are relevant to the granting of applications) unless to do so appears to be a disproportionate response to those changes. Where it appears disproportionate, the responsible body may, but is not obliged to, issue a Supplementary Statement under regulation 6(3). Such a statement then forms part of the PNA. The Committee noted that the PNA was dated April 2018.

4.22 The Committee noted that Nacad 8 Ltd seeks to provide unforeseen benefits to the patients of Harrietsham.

4.23 The Committee noted that Jacash Limited seeks to provide unforeseen benefits to the patients of Harrietsham.

4.24 The Committee noted that the improvements or better access that the Applicants were claiming would be secured by their applications were not included in the relevant pharmaceutical needs assessment in accordance with paragraph 4 of Schedule 1.

4.25 In order to be satisfied in accordance with Regulation 18(1), regard is to be had to those matters set out at Regulation 18(2). The Committee's consideration of the issues is set out below.

4.26 It was common ground between the Applicants that there should be a pharmacy at Harrietsham. Both Applicants argued that there was not a reasonable choice for patients and that there was difficulty in access. Neither Applicant suggested that both applications should be granted. Both submitted that their own application best met the criteria although both conceded that the applications were very similar. Of the interested parties, the Len Valley Practice would rather that neither application was granted. If one was to be granted then they favoured the application by Nacad 8 Ltd.

4.27 A comparison of the two applications would follow the scheme of Regulation 18(2) itself and allow the Committee to assess the relative merits of each application to be weighed against the other. Neither party had suggested that two grants were required. The Committee had regard to the judgement of Mr Justice Kerr, R (on the application of Rushport Advisory LLP) [2016] and the comments made on granting multiple applications to the same site. The Committee considered that granting more than one application, where there was no evidence that more than one grant was required, could lead to over-provision of NHS pharmaceutical services at the expense of the public purse. The Committee therefore proceeded on the assumption that only one grant was necessary to secure improvements or better access. After considering the relative merits of each application, the Committee would determine which application if any should be granted.

Regulation 18(2)(a)(i)

4.28 The Committee had regard to

“(a) whether it is satisfied that granting the application would cause significant detriment to—

(i) proper planning in respect of the provision of pharmaceutical services in the area of the relevant HWB”

4.29 The Committee was not provided with any evidence regarding planning or detriment to planning in respect of pharmaceutical services.

4.30 On the basis of the information available, the Committee was not satisfied that, if the application were to be granted and the pharmacy to open, the ability of the NHS England thereafter to plan for the provision of services would be affected in a significant way.

4.31 The Committee was therefore not satisfied that significant detriment to the proper planning of pharmaceutical services would result from a grant of the application.

Regulation 18(2)(a)(ii)

4.32 The Committee had regard to

"(a) whether it is satisfied that granting the application would cause significant detriment to— …

(ii) the arrangements the NHSCB has in place for the provision of pharmaceutical services in that area"

4.33 The Committee was provided with limited and in the main unquantified and unquantifiable evidence regarding significant detriment to the current provision of pharmaceutical services. The evidence was to the effect that there would be an impact to pharmaceutical services, namely that part which is met by the Len Valley dispensing doctor service, but that impact was as yet unknown. However, it could be both significant and detrimental.

4.34 The Committee was therefore not satisfied that significant detriment to the arrangements currently in place for the provision of pharmaceutical services would result from a grant of the application.

4.35 In the absence of any significant detriment as described in Regulation 18(2)(a), the Committee was not obliged to refuse the application and went on to consider Regulation 18(2)(b).

Regulation 18(2)(b)

4.36 The Committee had regard to

"(b) whether, notwithstanding that the improvements or better access were not included in the relevant pharmaceutical needs assessment, it is satisfied that, having regard in particular to the desirability of—

granting the application would confer significant benefits on persons in the area of the relevant HWB which were not foreseen when the relevant pharmaceutical needs assessment was published"

Regulation 18(2)(b)(i) to (iii)

Regulation 18(2)(b)(i) – reasonable choice

4.37 The Committee accepted the submission that reasonableness of choice is tied to the issues of access and the mobility of patients. As a matter of common sense it is also bound up with the issue of what the NHS can reasonably support and, what the market will sustain. The Committee started from the proposition that it is acceptable for patients to make a journey of some description to obtain pharmaceutical services. It may not always be convenient or what patients would like, but that does not mean it is unreasonable. What is reasonably accessible to some patients may not be so for others. Patients are only deprived of reasonable choice when inconvenience turns to difficulty that can only be met by unreasonable effort or expense. This depends upon

the circumstances of each case. It includes both choice of location and choice of supplier.

4.38 In this case the Committee noted that there are several pharmaceutical providers within a few miles of Harrietsham. A small proportion of patients appear to access pharmaceutical services at these locations whilst others do so at some distance - for example in London. It was reasonable to infer that these few patients had their own reasons for accessing pharmaceutical services in this way. Dispensing services form a part of pharmaceutical services albeit an important one. It was apparent from the evidence that, due to their home location, choice, habit, convenience, or a mix of these, the majority of Harrietsham’s patients access pharmaceutical services in one of three ways. The Len Valley dispensing service at the branch surgery in Harrietsham; their dispensing service in Lenham or, the Saxon Warrior Pharmacy in Lenham. The question for the Committee is whether this affords patients a reasonable choice.

4.39 Both applications were made on the basis that, if the criteria were met, only one application should be granted. There was also an acknowledgement that if either application was granted it would have an impact upon the Glebe branch surgery. There was limited information as to what that impact may be. On the one hand, Mr Daly opined that the Jacash application might take 3,000 to 6,000 items from the Len Valley dispensing service. He suggested that would not be a ‘catastrophic loss’ since the surgery was dispensing 13,000 per month. On the other the Nacad application, which would presumably have a similar impact, might make a contribution to building rental- costs at the Glebe medical centre.

4.40 Whilst the Committee noted the concern raised by Ms Sorensen-Bentham, that a practice cannot rely upon dispensing income to maintain a branch surgery, it also noted Dr Hagan’s pragmatic response namely that the practice looked at all its income streams to determine all services it can sensibly provide. Whilst he said there was no direct link between dispensing income and the viability of the Glebe branch surgery, Dr Hagan was clearly concerned that if the overall practice income was adversely affected by the loss of dispensing services then its corresponding overall level of service would fall. For this reason he clearly preferred that neither application were granted but, if either had to be then at least the Nacad application may have less of an impact since the loss of income may be balanced by some contribution toward rents. He alluded to another local practice closing its branch surgery in similar circumstances to this case.

4.41 Mr Daly submitted that there was insufficient evidence to meet the prejudice test if his client’s application were granted however, he clearly expected it to have an adverse impact. So did Dr Hagan. The effect of granting an application could not be quantified now, and thus the positive test for “would” cause significant detriment was not met. However, that did not preclude the Committee from considering these applications against the background of a potential diminution in current healthcare services. A pharmacy could replace dispensing services but it could not replace a well-regarded branch surgery. Both Mr Whittall and Mr Ford, who supported the idea of a pharmacy in Harrietsham were understandably rather less supportive if it damaged the Len Valley Practice and the Glebe branch surgery.

4.42 The Committee was of course aware that irrespective of the financial issue, if either application was granted then patients living within a 1.6km radius of the pharmacy would lose access to the dispensing services at both the Glebe and Lenham surgeries. Assuming that the Glebe surgery remains viable, if the Nacad application were granted patients could choose to use their pharmacy at the Glebe. If the Jacash application were granted patients would have to travel to their site across the A20 which is a less attractive proposition. Of course if the Glebe surgery closed, the grant of either application would be a disservice to patients in Harrietsham.

4.43 The Committee noted Dr Hagan’s evidence that patients living in the NE quarter of Harrietsham do walk to the Glebe. It concluded that such patients could be adversely affected by the grant of either application. It would extinguish the dispensing rights they

currently enjoy and about which there were few if any complaints. It would necessitate attending a second and, for some, more difficult location if the Jacash application were granted since that involved crossing what is a busy road to a location which, frankly, there would be no other reason to attend (unless the patient(s) were an employee at one of the companies or were using the allotments).

4.44 Much of the argument about choice was based upon the premise that the majority of patients using dispensing services at the Len Valley practice only did so because they were not given the option to go elsewhere due to the lack of EPS. However, the Committee noted that overall the practice was very highly regarded and, it may equally be that patients chose to avail themselves of a trusted dispensing service because they liked the convenience and continuity. The problem with both sides of that argument is it is speculative and, in the absence of clear evidence, the Committee could not conclude that because patients chose to use one service they were deprived of another. The Committee was also aware that, sadly, the relationship between the practice and Jacash is not what it might be and, neither side suggested that a new pharmacy would improve that relationship. Indeed, the Committee rather considered it was likely to do the opposite particularly if there was an adverse financial impact and/or patients did not like the change.

4.45 Currently patients in Harrietsham are provided with a dispensing service alongside a branch surgery in their own village. They also have two well-stocked stores in the village for OTC items – one quite centrally at the Co-Op and one at the eastern extremity at the garage. In addition they have a pharmacy just over 2 miles away in Lenham for the provision of pharmaceutical services beyond dispensing. Lenham is easily accessible by car and, there are two areas of parking. One in the village centre across the road from the pharmacy and one about 100yds away. There are both rail and bus-service available to patients who do not own a car. Whilst the rail service was not regarded as ideal with quite a walk involved, the bus-service appeared to be regular and included buses on Saturdays, Sundays and Bank Holidays. They stop at regular intervals in Harrietsham and go into the centre of Lenham and back.

4.46 Whilst there were (and always will be) individual instances of patients who may benefit from a pharmacy close at hand, the Committee’s task is to assess the overall picture of choice within the HWB albeit narrowed down to the patients in the relevant location – in this case Harrietsham. In the Committee’s view patients do have a choice. They can accept highly regarded dispensing services for their medicinal needs but, if they need or want additional pharmaceutical services they can arrange to go to the Saxon Warrior pharmacy in Lenham which is a short distance away. If they want to obtain their medication from Saxon Warrior they can do so. If they have to travel two miles to exercise that choice, that is not unreasonable. The two issues raised regarding EPS and choice after 5.30pm are both either being addressed and/or capable of address (see below).

4.47 Therefore the Committee was not satisfied that, having regard to there being a reasonable choice with regard to obtaining services, granting the applications would confer significant benefits by way of physical access on persons.

4.48 The Committee was of the view that there is already reasonable choice with regard to obtaining pharmaceutical services in the area of the relevant HWB, such that it was not satisfied that, having regard to the desirability of there being a reasonable choice with regard to obtaining services, granting the applications would confer significant benefits on persons.

Regulation 18(2)(b)(ii) – protected characteristics, specific need & difficulty

4.49 In considering Regulation 18(2)(b)(ii) the Committee reminded itself that it was required to address itself to people who share a protected characteristic having access to services that meet specific needs for pharmaceutical services that are difficult for them to access. The Committee was also aware of its duties under the Equality Act 2010

which include considering the elimination of discrimination and advancement of equality between patients who share protected characteristics and those without such characteristics.

4.50 In the Committee’s view patients who share protected characteristics are referred to as a subset of all patients in order to ensure that the interests of patients who are potentially more vulnerable and who have particular needs and difficulties are considered. This subsection gives them special prominence but, it is limited by a focus on three questions. One, are there any patients relied on by the applicant(s) who share a protected characteristic? Two, do they have specific needs? Three, do they have difficulty in accessing pharmaceutical services to meet those needs?

4.51 The Committee determined that it is not enough simply to say we all have protected characteristics or suggest that any population must contain patients with protected characteristics so any difficulty experienced by the population must be experienced by them. If that were the case there would be no point in this subsection. What is required is evidence to identify a number of patients with a common characteristic or feature. Once they have been identified, the applicant needs to link those patients to the important issues of specific need and difficulty beyond the generalities of access and choice dealt under subsection 18(2)(b)(i).

4.52 The Committee was aware from the papers that, Harrietsham has older residents and two, Mr Whittall and Mr Ford gave evidence. They both affirmed that the service provided by the Len Valley Surgery was excellent. They each collect their prescription medication from the Saxon Warrior pharmacy in Lenham. Neither suggested that this was particularly difficult although it may become so as they get older but, they could of course use the dispensing doctor service at the Glebe. Both suggested it would be convenient to have a pharmacy in Harrietsham. Mr Whittall wished, in the main, to access OTC items otherwise available at the Co-Op where he chooses not to shop, and Mr Ford thought that the 24hr collection service mentioned by Dr Hagan would be very convenient.

4.53 When considering the papers the Committee saw a small number of letters from residents in either Harrietsham or Lenham who supported the idea of a ‘dispensing chemist’ or of a chemist/pharmacy in Harrietsham. One or two spoke of some difficulty or inconvenience but the number was small and there was little evidence beyond that applicable to the general population. The submissions did not add to this.

4.54 The Committee was of the view that the ease or difficulty with which all patients in Harrietsham currently access pharmaceutical services would necessarily be faced by persons with protected characteristics. There was insufficient evidence from which to infer that there was a significant number of elderly patients, patients with reduced mobility or with limited faculties who had specific needs that required pharmaceutical services and who had difficulty in accessing those services. The Committee considered that these issues of general need and inconvenience had been dealt with in the context of access and choice.

4.55 For the above reasons the Committee was not satisfied that, having regard to the desirability of people who share a protected characteristic having access to services that meet specific needs for pharmaceutical services that are difficult for them to access, granting one or both applications would confer significant benefits on persons.

Regulation 18(2)(b)(iii) – Innovation

4.56 In considering Regulation 18(2)(b)(iii) the Committee had regard to the desirability of innovative approaches to the delivery of pharmaceutical services. In doing so, the Committee would consider whether there was something more over and above the usual delivery of pharmaceutical services that might be expected from all pharmacies, some ‘added value’ on offer at the location.

4.57 Innovation was not relied upon by the applicants nor was any immediately obvious from the papers.

4.58 The Committee was not satisfied that, having regard to the desirability of there being innovative approaches taken with regard to the deliverability of pharmaceutical services, granting one or both applications would confer significant benefits on persons

Regulation 18(2)(b) generally

4.59 The Committee was of the view that there was limited information provided to suggest that pharmaceutical services are not currently provided at such times as were needed. First, Saxon Warrior Pharmacy closed at 5.30pm whereas the Len Valley surgeries were open until 6.30pm and Dr Hagan observed that a number of patients may be inconvenienced by this mismatch in timing. Second, some patients may have difficulty collecting medication through the current dispensing services available at the Glebe.

4.60 The Committee was of the view that both these issues can be resolved without the need to open an entirely new pharmacy. Dr Hagan’s evidence suggested that the dispensing issue was already being addressed by way of introducing a 24hr collection service. It was notable that both applications included core hours to 6.30pm. From this the Committee inferred that all parties are aware of the timing issue and are capable of addressing it. Whilst the opening-hours of the Saxon Warrior Pharmacy are a matter for its managers, they are providing a service to the public underpinned by the NHS. Being aware of this particular issue the Committee would invite them to consider adjusting their hours to meet this small potential problem.

4.61 Given their limited nature and the ease with which the above issues may be remedied the Committee was not satisfied that, having regard to the desirability of there being a reasonable choice with regard to obtaining services, granting one or both applications would confer significant benefits (in relation to opening hours) on persons.

4.62 The Committee viewed both applications as providing some benefit to a limited number of patients whilst potentially depriving a larger number of patients of a choice or a service they currently enjoyed and viewed positively. In effect they risked doing more harm than good. Once again the Committee was again not satisfied that, having regard to the desirability of there being a reasonable choice with regard to obtaining services, granting the applications would confer significant benefits on persons.

4.63 The Committee was of the view that in accordance with Regulation 18(2)(b) the granting of either application would not confer significant benefits on persons in the area of the HWB which were not foreseen when the PNA was published.

Regulation 44 - Prejudice

4.64 Having considered the matter of reserved location and, having considered the applications under Regulation 18, the Committee next considered the question of prejudice under Regulation 44.

4.65 The potential for prejudice only arises if the Committee has concluded that the applications meet the requirements of Regulation 18 and may be granted. If they do not meet the requirements of Regulation 18 then the Committee is required to refuse them and prejudice cannot arise. As indicated above, the Committee has determined that the applications do not meet the requirements of Regulation 18 and, since it cannot arise, consideration of prejudice was not required.

Other considerations

4.66 Having determined that Regulation 18(2)(b) had not been satisfied, the Committee did not need to have regard to Regulation 18(2)(c) to (e).

Comparing the applications

4.67 Having concluded that neither application met the criteria of significant benefit the Committee did not consider the need to compare the merits of each application.

4.68 No deferral or refusal under Regulation 18(2)(f) was required in this case.

4.69 The Committee had regard to Regulation 18(2)(g) and found that it did not apply in this case.

4.70 The Committee considered whether there were any further factors to be taken into account and concluded that there were not.

4.71 The Committee was not satisfied that the information provided demonstrates that there is difficulty in accessing current pharmaceutical services such that a pharmacy at either of the proposed sites would provide better access to pharmaceutical services.

4.72 Pursuant to paragraph 9(1)(a) of Schedule 3 to the Regulations, the Committee may:

4.72.1 confirm NHS England’s decision(s);

4.72.2 quash NHS England’s decision(s) and redetermine the applications;

4.72.3 quash NHS England’s decision(s) and, if it considers that there should be a further notification to the parties to make representations, remit the matter to NHS England.

4.73 The Committee went on to consider whether there should be a further notification to the parties detailed at paragraph 19 of Schedule 2 of the Regulations to allow them to make representations if they so wished (in which case it would be appropriate to remit the matter to NHS England) or whether it was preferable for the Committee to redetermine the applications.

4.74 The Committee noted that representations on Regulation 18 had been sought from parties by NHS England and representations had already been made by parties to NHS England in response. These had been circulated and seen by all parties as part of the processing of the applications by NHS England. The Committee further noted that when the appeals were circulated representations had been sought from parties on Regulation 18.

4.75 The Committee concluded that further notification under paragraph 19 of Schedule 2 would not be helpful in this case.

5 DECISION

5.1 In respect of the application by Nacad 8 Ltd the Pharmacy Appeals Committee (“Committee”), appointed by NHS Resolution, confirms the decision of NHS England, therefore the application is refused

5.2 In respect of the application by Jacash Limited the Pharmacy Appeals Committee (“Committee”), appointed by NHS Resolution, confirms the decision of NHS England, therefore the application is refused

5.3 The Committee concluded that Harrietsham is in a controlled locality and that the sites of the applications are not in a reserved location

5.4 Having determined that the applications should be refused, it was unnecessary for the Committee to make a decision upon whether granting the applications would prejudice

the proper provision of relevant NHS services in the area of (a) the relevant HWB; or (b) a neighbouring HWB of the relevant HWB.

5.5 The Committee has considered whether the granting of an application would cause significant detriment to proper planning in respect of the provision of pharmaceutical services in the area covered by the HWB, or the arrangements in place for the provision of pharmaceutical services in that area and is not satisfied that it would.

5.6 The Committee determined that the applications should be refused on the following basis:

5.6.1 In considering whether the granting of either application would confer significant benefits, the Committee determined that –

5.6.1.1 there is already a reasonable choice with regard to obtaining pharmaceutical services;

5.6.1.2 there is no evidence of people sharing a protected characteristic having difficulty in accessing pharmaceutical services; and

5.6.1.3 there is no evidence that innovative approaches would be taken with regard to the delivery of pharmaceutical services.

5.6.2 Having taken these matters into account, the Committee is not satisfied that granting either application would confer significant benefits as outlined above that would secure improvements or better access to pharmaceutical services.

Committee Chair

OH ANNEX A

REF: SHA/23402 Arena Point Merrion Way APPEAL AGAINST NHS COMMISSIONING BOARD Leeds ("NHS ENGLAND") DECISION TO REFUSE AN LS2 8PA APPLICATION BY NACAD 8 LTD FOR INCLUSION IN THE PHARMACEUTICAL LIST OFFERING Tel: 0203 928 2000 UNFORESEEN BENEFITS UNDER REGULATION 18 AT Fax: 0207 821 0029 THE PREMISES OF GLEBE MEDICAL CENTRE, Email: [email protected]

CHURCH ROAD, HARRIETSHAM, MAIDSTONE, KENT, ME17 1AP (BEST ESTIMATE)

1 The Application

By application dated 25 November 2019, NACAD 8 Ltd (“the Applicant”) applied to NHS Commissioning Board (“NHS England”) for inclusion in the pharmaceutical list offering unforeseen benefits under Regulation 18 at the premises of Glebe Medical Centre, Church Road, Harrietsham, Maidstone, Kent, ME17 1AP (Best Estimate). In support of the application it was stated:

In response to the question of if the application should be refused pursuant to Regulation 31, the Applicant stated:

1.1 The reason this is not applicable is that there is not another pharmacy or dispensing appliance contractor premises either adjacent to or in close proximity to those properties which fall within the best estimate for the location of the proposed pharmacy.

Information in support of the application:

Context

1.2 Glebe Medical Centre, located in Church Road, Harrietsham is a branch surgery of Len Valley Practice (the main surgery being located in Lenham). The Glebe Medical Centre is a dispensing practice. As with all dispensing practices, the dispensary only dispenses prescription. No other pharmaceutical services are available.

1.3 Len Valley has 9374 patients registered (NHSBSA June 2019) which is an increase of 20% over the past 5 years. This increase is solely attributable to house building within the practice area.

1.4 The Applicant believes that they are reliably informed that further developments are in the pipeline which will result in 100 new homes being released each year over a ten year period.

1.5 The nearest pharmacy is Saxon Warrior Pharmacy, which is located in Lenham and is 2.1 miles from Harrietsham. The next nearest pharmacies are in excess of 5.5 miles from Harrietsham.

1.6 Harrietsham is located close to the M20 and the busy A20 runs through the village and effectively separates Harrietsham from Lenham.

Better Access for Rural Residents

1.7 For the residents of Harrietsham, the nearest available pharmacy is 2.1 miles distant in Lenham. This may be accessible for those with transport. However, 7.8% of the population have no access to a car or van and 35.4% of the population have access to one car – however, if that vehicle is being used by one family member for work out of the village, the implication is that for much of the day many more residents do not have access to a car and in turn access to a pharmacy is that much more difficult. Access to Essential Service, e.g. over the counter medications will be extremely challenging for many.

Better Access to Pharmaceutical Services for the Ageing Population

1.8 The Kent Joint Health & Wellbeing Strategy states that:

1.8.1 “Kent has an ageing population and forecasts show that the number of people over 65 is forecast to increase by 43.4% between 2010 and 2026… Kent’s ageing population will place significant pressures on health and social care services… 16.5% of Kent’s population live with a limiting long term illness, and in most cases they have multiple long term conditions.”

1.9 The population of Harrietsham for all ages has grown by 20% between 2001 and 2011 (ONS Data). The over 65’s who accounted for 15.3% of the population in 2001, accounted for 20.11% of the population by 2011. The elderly as a proportion of the population significantly exceeds the proportion for England (16.7%).

1.10 The fact that there is a rapidly ageing population across England is well documented – as are the implications on all aspects of the NHS.

Implications (of an ageing population) for Pharmaceutical Services

1.11 The need for access to pharmaceutical services which are conveniently located is most acute for the over 65’s and especially for the residents for Harrietsham where the proportion of over 65’s is significantly greater than the proportion nationally and this is continuing to grow. In addition, 10.5% of the community are involved in providing unpaid care – this is slightly above the national average of 10.2%.

1.12 The Harrietsham Neighbourhood Plan (November 2013) says:

1.12.1 “Public transport provision was generally seen as inadequate, with services not frequent enough or convenient enough.”

1.12.2 “A greater range of community infrastructure is needed if the village is to effectively meet the needs of new and existing residents.”

1.13 Subsequently, the Maidstone Borough Local Plan (Adopted October 2017) stated that key infrastructure requirements for Harrietsham include:

1.13.1 Improvements to health infrastructure including extension and/or improvements at Glebe Medical Centre.

Also,

1.13.2 The loss of local shops, community facilities and green spaces will be resisted, and new retail developments, community services and open space will be supported to meet local needs.

Improved Health Interventions for Young People

1.14 The provision of Enhanced Pharmaceutical services relevant to young people needs to accessible and convenient for all age groups including those at the younger end of the age spectrum. It is also important to be able to offer a choice of provider within reasonable travelling distance. At Harrietsham this is not currently the case.

1.15 New housing developments as seen in the Harrietsham locality are often inhabited by young families resulting in an increase in the proportion of young patients. The 2018 PNA with reference to West Kent noted that the main users of pharmaceutical services were the 0 – 9 year age group and the over 65’s accounting for 31% of the population across both groups.

Better Access and Improved Pharmacy Opening Times

1.16 The nearest pharmacy to Harrietsham is Saxon Warrior Pharmacy is Lenham. The distance from Harrietsham will be difficult for many.

1.17 The opening times of Saxon Warrior Pharmacy are:

1.17.1 Monday to Friday 9.00am to 5.30pm

1.17.2 Saturday 9.00am to 1.00pm*

(Source: Saxon Warrior Pharmacy Website)

1.18 Any non-dispensing patients will find these weekday opening times restrictive if they have late appointments with their GP and then wish to access the pharmacy located in Lenham which closes 30 minutes before the surgery closes.

Closer Co-operation with Clinicians and targeted advice to Patients

1.19 Modelled Disease Prevalence for Len Valley Practice shows the following estimates for the following conditions

Condition Practice Value England Average

Diabetes (17yrs+) 7.2% 6.8%

CHD (all ages) 4.0% 3.1%

COPD(all ages) 2.2% 1.9%

Hypertension (all ages) 18.2% 13.9%

Stroke (all ages) 2.5% 1.8%

(Source: General Practice Profile – Public Health England)

1.20 The prevalence of all the conditions above within the practice area is higher than the national average. These conditions result in the patient being prescribed long term medication and there is a role for community pharmacy to do everything possible to ensure compliance with medication regimes, minimise waste and ensure patients are benefiting from their medication.

1.21 The draft Kent Joint Health & Wellbeing Strategy (2018-2023) states that: “At the heart of this planning across both health and social care is the ambition to deliver more services locally and more conveniently either near or in someone’s home, reducing the need to travel to hospital unless absolutely necessary, or to be in hospital longer than

is needed. Widely available community based or local care is the key to moving services out of hospital with health and social care staff working together to support an individual with their health and care needs.”

1.22 The Health and Wellbeing Board has set out outcomes it aspires to across the local population which include:

1.22.1 Reduced costs attached to diabetes, cancer, heart disease, stroke

1.22.2 Fewer GP appointments

1.22.3 Fewer emergency admissions

1.22.4 Fewer falls

1.22.5 Fewer care home admissions

1.22.6 Smoking cessation

1.22.7 Healthy diet

1.23 A community pharmacy in Harrietsham would provide more comprehensive services which would support achieving better outcomes in the above areas.

Summary

1.24 In seeking to join the Pharmaceutical List to provide pharmaceutical services in Harrietsham, the Applicant would identify the following improvements or better access compared to the status quo:

1.25 Significantly improved access to ALL pharmaceutical services. Currently to access such services, residents must travel to Lenham (2.1 miles), or to other pharmacies located in excess of 5.5 miles from the village.

1.26 The proportion of those aged over 65 and the rate of increase in the proportion of over 65’s is significantly greater in Harrietsham (20.1%) than is the case nationally (16.7%). As this group is highly dependent on clinical, social and pharmaceutical services, there are clear benefits in having a pharmacy located in the village.

1.27 Although young people are less reliant on pharmaceutical services, there are nevertheless distinct benefits to be achieved in terms of health issues which are of particular relevance to young people e.g. Smoking, Drinking, and Sexual Health.

1.28 The nearest existing pharmacy provider does not mirror local surgery hours and patient surveys indicate that this is an issue – particularly late in the day.

1.29 The local GP Practice Profile suggests there is a higher prevalence of long term conditions among the population than is the case nationally. Such conditions usually require the patient to be prescribed long term medication. The lack of a local pharmacy provider increased the risk of non-compliance with medication and therefore wasted medication and a deterioration in the patient’s health and well-being.

1.30 Advanced services including the new Community Pharmacist Consultation Service (CPCS) and the New Medical Service (NMS) can where effectively targeted do much to ensure compliance with medicines and avoid situations where inappropriate use of medicines might lead to falls and/or hospital admission.

Better Access to Essential Services

1.31 In accordance with The NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 [Schedule 2, paragraph 9(c)(ii)], the Applicant will (as required by the Regulations) provide all essential services thereby providing the residents of Harrietsham access to the full complement of Essential Services:

1.31.1 Dispensing

1.31.2 Repeat dispensing

1.31.3 Disposal of unwanted medicines

1.31.4 Promotion of healthy lifestyles

1.31.5 Signposting & Support for self care

1.31.6 Clinical governance

1.31.7 Home delivery of stoma and incontinence supplies – including the

1.31.8 Provision of Appliance Use Reviews (AURs)

1.32 The above will be available from the initial opening of the pharmacy. This will be achieved by effecting [sic] recruitment of trained personnel or providing training as necessary sufficiently in advance of the commencement of trading to be able to deliver the above services. It is intended to recruit dispensing staff of sufficient calibre (including a Pharmacy Technician) which will enable the Responsible Pharmacist to oversee and participate in the full range of services. Services targets at compliance, reduction in medicinal waste (resulting from non-compliance) and health promotion will be promoted vigorously as part of the Applicant’s strategy to ensure the over-65’s are comprehensively catered for.

Better Access – Opening Hours

1.33 As indicated in above, the Applicant’s best estimate for the location of the proposed premises (as per Paragraph 1(7)(a)(ii) of Schedule 2 The NHS Pharmaceutical Services Regulations 2013). The anticipated location will provide the following facilities:

1.33.1 Pharmaceutical services to all patients accessing the locality

1.33.2 Safe and sufficient car parking facilities

1.33.3 DDA compliant access to all pharmacy facilities

1.33.4 A minimum of one private fully equipped consultation room

1.34 The Applicant has stated their proposed opening hours above (as per Paragraph 1(7)(c) & (d) of Schedule 2). These mirror the times at which the nearby surgery opens in the morning and extends beyond the closing time of the surgery by 30 minutes. In addition, the pharmacy will be open on Saturdays (9am to 1.00pm). The Applicant will provide an Out of Hours Services (irrespective of any other provider being prepared to sign up to a joint scheme) to ensure coverage on public holidays. The Applicant will work with commissioners to ensure that essential and direct pharmaceutical services are available on public holidays.

1.35 It is the Applicant’s contention that the nature and characteristics of Harrietsham including its rural location, its location in respect of other towns and conurbations and its demographic profile result in restricted access to comprehensive pharmaceutical services. The Applicant’s objective is to provide access to more than just dispensing

services for the Harrietsham community by establishing a pharmacy which sets out to satisfy an obvious shortfall in service provision which the 2018 PNA did not identify due to the inevitable limitations of the report in terms of a forensic assessment of local needs.

Better Access – Advanced Services

1.36 The Applicant recognises the contribution the above services can make to the community and therefore take seriously matters affecting the quality, reliability and delivery of such services. The Applicant recognises that several of the services outlined above will require Pharmacist invention and involvement. With this in mind, the Applicant intends to use a second pharmacist on a part time basis which will be self funding from the fees/payments provided by the commissioning body.

Better Access to Pharmacy Services for Older People

1.37 The Applicant has already eluded to the fact that they note the over-65’s represent a significant proportion of the population in Harrietsham with the accompanying risk of long term conditions i.e. this group of people share a protected characteristic as identified in the NHS (Pharmaceutical Services) Regulations 2013 (Part 2, Para 18(2)b(ii)).

1.38 Almost inevitably, a high proportion of elderly residents within a community necessitates the support of carers.

1.39 Convenience, choice and access to comprehensive pharmaceutical services is as critical to carers as it is to the ‘cared for’. Pharmacies often have more contact with carers than other health providers and therefore are well placed to identify issues which carers are facing before they escalate. By providing a locally focused service, the Applicant’s proposed pharmacy will ensure this group are comprehensively catered for.

1.40 The Applicant will ensure that the recently launched Community Pharmacist Consultation Service is fully supported to ensure appropriate advice is provided concerning the safe and effective use of medicines. The New Medicine Service will be extended in the same way, and through these mechanisms provide effective feedback to clinicians.

1.41 With an ageing population which is a dominant segment of the local population, the pressure on pharmaceutical services will increase. With relatively poor access to the next available providers, the situation will inevitably deteriorate further. Strategically it is time to approve a pharmacy contract to improve the current and future situation for the Harrietsham community.

1.42 As Harrietsham has a higher proportion of elderly residents, it follows that there are likely to be more ‘at risk’ groups who could benefit from interventions which would target such groups and promote healthy lifestyles, or be directed to appropriate sources of help and support at an earlier stage than might otherwise be the case. The proportion of such ‘at risk’ groups in Harrietsham, the number of people with long term conditions and the number of unpaid carers are at such a level that they are all indicators of a need for additional pharmacy provision. The Applicant will work in conjunction with all health and social care providers and therefore gain the necessary benefits which can result from early intervention.

Better Access to Enhanced Services

1.43 In accordance with The NHS Pharmaceutical Services Regulations 2013 (paragraph 9(d) of Schedule 2), the Applicant will provide the Directed Services as per service specifications determined commissioning bodies including NHS England and Kent Health & Wellbeing Board.

Service Innovation

1.44 In order to deliver the improvements and better access identified above, the Applicant will also intend wherever possible to supplement its range of pharmacy services with innovative approaches. The Applicant’s objectives for the proposed pharmacy are not only to ensure the pharmacy and the pharmacist(s) are accredited to offer the widest possible range of locally commissioned services but also to be proactive in developing new innovative services to meet local health needs.

1.45 These could include:

1.46 (i) A service to develop Pain Management

1.46.1 As part of a holistic primary care service, the pharmacy will provide via MURS and the NMS, targeted advice for patients taking analgesics such as NSAID or opiates to ensure safe and effective prescribing e.g. avoidance of co- prescribing NSAIDS with diuretics and ACEs, screening for opiate over-use and instituting proper withdrawal regimes.

1.47 (ii) Falls Prevention Service

1.47.1 The Applicant would wish to work closely with commissioners to establish a Falls Prevention Service to older people taking multiple medicines who may be at risk of a fall. By discussing with at risk patients how and when to take their medicines and referral to other specialist services, it is anticipated that this service would reduce hospital admissions or fractures incurred from falls.

1.48 (iii) Stroke referral scheme (in conjunction with New Medicine Service)

1.48.1 Stroke victims are a high risk group of poor adherence to medication and using the New Medicine Service can help overcome this problem.

1.49 Anticoagulant Pharmacy Service

1.49.1 Newer oral anticoagulants being prescribed could see patients referred from primary and secondary care to pharmacies for review and initiation of anticoagulants – ensuring patients are engaged in decision making and are fully counselled.

1.50 Where there is an identified need for services in the area which are not currently met under NHS prescribing or the provision of commissioned services, it is the Applicant’s intention to offer these as private Patient Group Directions. The Applicant has identified clinical input to facilitate these.

1.51 Depending on final decisions to be taken with regard to the location, it is the Applicant’s intention to provide a Treatment Room in addition to the required Consultation Room. This facility will be made available for services such as podiatry, sports injuries, nutritional advice and weight management. This will supplement and complement the usage of the Consultation Room for enhanced and advanced services such as smoking cessation, drug substitution replacement therapy, medicine and appliance reviews, and the New Medicine Service.

Summary of Distinguishing Characteristics

Characteristic Proposed Pharmacy

Convenient, and easy access √

Surgery hours more than covered √

Out of Hours Service √

Comprehensive Services √

Pharmacist Prescriber √

Innovative Pharmacy Services √

Treatment Room for other services √

Independent and locally managed √

1.52 In summary, the Applicant would secure improvement and better access to pharmaceutical services for patients living in Harrietsham and the surrounding area who currently have difficulty in accessing these services due to the travelling distance involved and the age and health profile of a significant proportion of the population.

1.53 The opening hours and services will compliment those provided by the local surgery. The Applicant will always ensure that it at least matches any future increase in surgery opening hours and will open on Saturday mornings.

1.54 The Applicant’s proposed pharmacy will confer significant benefits on those with protected characteristics – specifically the over 65’s in the case of this locality who form a significant and rapidly growing proportion of the population.

1.55 The potential co-location of a pharmacy with the existing surgery, will provide additional benefits in terms of managing patient outcomes, hospital episodes, medication regime compliance and the provision of innovative services.

2 The Decision

NHS England considered and decided to refuse the application. The decision letter dated 22 September 2020 states:

2.1 NHS England has considered the above application and is writing to confirm that it has been refused. Please see enclosed report for the full reasoning.

Report

The Application

2.2 An application from NACAD8 offering unforeseen benefits was received on 16 January 2020. The Applicant proposed to site the new pharmacy at the following best estimate address: Harrietsham, Maidstone, Kent

2.2.1 NHS England was now required to consider the application in accordance with Regulation 18 of the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013, as amended.

Consideration

2.3 NHS England considered the following:

2.4 The NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013, as amended.

2.5 The application form provided by the Applicant.

2.6 Map of the proposed location, local pharmacies and local GP surgeries. Several maps had been submitted as the original best estimate was not accepted.

2.7 Site visit report.

2.8 The application was considered alongside that submitted by Jacash Ltd, for unforeseen benefits at Harrietsham, Maidstone, Kent.

2.9 Representations, as made by the following interested parties:

2.10 Len Valley Practice:

2.10.1 As a dispensing medical practice Len Valley Practice’s interests are significantly affected by this application and would wish to be copied in all correspondence to and from NHS England regarding the consultation and the subsequent determination.

2.10.2 The principal of NACAD 8 is well known to us and the application is made with our approval.

2.10.3 For the avoidance of any doubt, Len Valley Practice do not support any other competing pharmacy application in the vicinity of its premises in Harrietsham.

2.10.4 On the balance of probabilities, the grant of consent to the Applicant will be beneficial to our patients particularly those with protected characteristics such as elderly and disabled patients.

2.11 Kent LPC

2.11.1 As per NHS Regulations 2013 18 C Would it be desirable to consider, at the same time as the Applicant’s application, applications from other persons offering to secure the improvements or better access that the Applicant is offering to secure? The LPC note that the application is dated 26 November 2019. Jacash Ltd – UFB – Best Est Harrietsham – CAS-1331344-N6B4T4 sent in an application on 26 October 2018 and the LPC believe that it would be prudent to allow Jacash Ltd to update his application and for both applications to be considered together.

2.11.2 The LPC wish to be assured that the Applicant will provide full pharmaceutical services as the current application only shows the size of the consultation room as premises have not yet been secured and this does not allow the LPC to understand if the premises will be sufficient enough to provide all pharmaceutical services.

2.12 Kent HWB

2.12.1 The current PNA is being reviewed and areas which have changed considerably since the last review are being assessed as a priority. It is generally felt that in villages such as Harrietsham where the population is increasing rapidly, such services such as a pharmacy sited in the middle of the village would be beneficial to the inhabitants. The HWB have a few queries which may need to be addressed about this particular application.

2.12.2 The HWB are unaware of the Applicant currently holding a contract in the Kent area and therefore would request reassurance that the relevant fitness to practice has been carried out.

2.12.3 The HWB note that the postcode proposed for the premises is ME17 1AP which appears to be in the current medical centre. The application suggests that the Pharmacy will be within the premises of the Medical Centre which is already very busy. The diagrams only shows the suggested layout of the consultation room but not the layout of the proposed pharmacy. Further clarification of the actual premises and its accessibility is requested.

2.12.4 The HWB understand that NHS England have recently carried out a rurality review and determined that this area is still within a controlled locality despite the increase in new housing in the area. NHS England do not appear to have identified how many patients there are registered for GMS services living within 1.6km of Harrietsham. If the number of patients affected is currently less than 2750, the area could be considered to be a “reserved location” although this may change as the population grows. There is a dispensing branch surgery of Len Valley Practice in Harrietsham which currently is able to dispense to all its patients in the Harrietsham area. If a pharmacy contact is granted within Harrietsham then there needs to be some discussion as whether the dispensing service will be prejudiced and how they will differentiate between pharmacy patients and dispensing patients.

2.12.5 It is important to realise that community pharmacies do not only dispense prescriptions but allow patients to self-care, obtaining pharmacy-only medicines over the counter instead of taking up valuable GP time. This is a priority of the local West Kent CCG who encourage their residents to normally buy medicines for common ailments and not to visit their GP. They even commission a local scheme (The West Kent Common Ailment Scheme) to help patients with this. Self-Care is also a national priority and all of the pharmacies in Kent are contracted to become a Healthy Living Pharmacy, which not only provides advice about medicines, but also acts as a Community Hub providing advice, support and signposting to the integrated services in both health and social care which encourage a healthy lifestyle. Any new contract granted should be expected to meet these requirements. However, several of the services proposed in the application are not commissioned in Kent and can only be offered as a private service. Therefore they cannot be included under unforeseen benefits of a NHS pharmacy contract.

2.12.6 The application does not mention the availability of a train service from Harrietsham station. The station at Harrietsham serves trains to Maidstone and onto London Victoria and also trains to Canterbury via Ashford joining up at Ashford with the high-speed line to London St Pancras and the Eurostar to the continent. The activity at Harrietsham station appears to be over 80,000 passengers a year either joining or leaving a train there which fits into the concept that this is a commuter village where the family car is left at home.

2.13 All additional information, including location, access and distances of surrounding pharmacies and their opening times.

2.14 Department of Health Guidance – Regulations under the Health and Social Care Act 2012: Market Entry by means of Pharmaceutical Needs Assessments – Chapter 10.

2.15 NHS England decided it was not necessary to hold an oral hearing before determining the application.

2.16 NHS England provided the background to the application. The area of Harrietsham is almost a suburb of Maidstone, with considerable housing development over the past few years. The village does not have a centre, not many shops or other facilities.

Regulation 31 – Refusal: same or adjacent premises

2.17 NHS England noted that it was required to refuse an excepted application, if the two conditions under paragraph 31(2) applied. These conditions are –

2.17.1 A person on the pharmaceutical list (which may or may not be the applicant) is providing or has undertaken to provide pharmaceutical services (“the existing services”) from the premises to which the application relates, or adjacent premises; and

2.17.2 The NHSCB is satisfied that it is reasonable to treat the services that the applicant proposes to provide as part of the same service as the existing services (and so the premises to which the application relates and the existing listed chemist premises should be treated as the same site).

2.18 NHS England noted the Applicant’s comments with regard to why the application should not be refused pursuant to Regulation 31.

2.19 NHS England was satisfied that there was no other provider of pharmaceutical services at or adjacent to the proposed address and concluded that it was not required to refuse the application for the purpose of Regulation 31.

2.20 Having established that it did not have to refuse the application under Regulation 31 NHS England moved on to consider Regulations 36 & 37.

Regulations 36 & 37

2.21 NHS England then considered Regulation 36 and 37. The area had previously been determined as a controlled locality, and as a result of a recent rurality review and in the absence of any proposal from either the LPC or LMC that this classification should be changed, NHS England confirmed that it should remain a controlled locality within the meaning Regulations 36 of the 2013 Regulations.

2.22 In these circumstances, as the site of the proposed pharmacy is in a controlled locality and the application was based on securing improvements or better access to pharmaceutical services in that controlled locality, NHS England went on to assess the application against the provisions of PART7 of the Regulations and, in particular, Regulations 40 which reads:

2.23 [Regulation 40 quoted]

Regulation 40(1)

2.24 NHS England noted that there was no dispute between the parties that the best estimate location for premises where the Applicant was seeking listing, was in a controlled locality.

Regulation 40(2)(b)

2.25 NHS England noted that there had been no decision regarding a pharmacy application in place within the last five years.

2.26 Therefore, NHS England did not need to refuse the application under Regulation 40.

Regulation 41: Controlled locality – reserved location

2.27 Based on the conclusions above, NHS England went on to consider the application in light of the remainder part of Part 7 and, in particular, regulation 41 which reads:

2.28 [Regulation 41 quoted]

2.29 NHS England considered the issue of reserved location as Regulation 41(2) is mandatory as it requires NHS England to make a determination regarding reserved location status in circumstances such as these. NHS England noted that the number of individuals residing within 1.6km radius of the best estimate location on the date of the receipt of the application was 2,818 and as such more than 2,750 which is required for reserved location status according to Regulation 41(3)(a). NHS England noted that the population count would have to be re-done in the event that the application is granted.

2.30 NHS England found that the application was not for premises within a reserved location.

Regulation 18

2.31 NHS England noted that this was an application for “unforeseen benefits” and therefore was to be considered under the provisions of Regulation 18 which states:

2.31.1 [Regulation 18 quoted]

2.32 NHS England had previously decided there was no need to defer the application under Regulation 18(2)(c) to (f).

2.33 Will approving the application(s) secure improvements or better access to pharmaceutical services? (Reg 18(1)(a))

2.33.1 NHS England considered the provision of pharmaceutical services in the area of Harrietsham where currently there are dispensing services provided by the local GP surgery, but no pharmacy.

2.33.2 NHS England, therefore, found that Regulation 18(1)(a) was satisfied in that is was required to determine whether it was satisfied that granting the application or granting it in respect of only some of the services specified in it, would secure improvements, or better access, to pharmaceutical services, or pharmaceutical services of a specified type, in the area of the relevant HWB.

2.34 Were these improvements included in the PNA? (Reg18(1)(b))

2.34.1 NHS England, having considered that Regulation 18(1)(a) was satisfied, went on to consider whether Regulation 18(1)(b) was satisfied ie, whether the improvements or better access that would secured if the application was granted were or was included in the PNA in accordance with paragraph 4 of Schedule 1 in the regulations.

2.34.2 NHS England considered the PNA prepared by Kent HWB published March 2018 and was conscious of the fact that this document provides an analysis of the situation as it was assessed at the time of its publication. However, NHS England was also mindful of the obligations under Regulation 6(2) on the body responsible for the PNA to make a revised assessment as soon as reasonably practicable (after identifying changed that have occurred that are relevant to the granting of applications) unless to do so appear to be disproportionate response to those changes. Where it appears disproportionate, the responsible body may, but is not obliged to, issue a Supplementary Statement under Regulation 6(3). Such a statement then forms part of the PNA. NHS England noted that no relevant Supplementary Statements had been issued since the publication of the PNA in March 2018.

2.34.3 Based on the information provided NHS England noted that the improvements or better access that the Applicant was claiming would be secured by its 12

application were not included in the relevant PNA in accordance with paragraph 4 of Schedule 1.

2.35 In order to be satisfied with regulation 18(1), NHS England had to have regards to those matters set out in Regulation 18(2). NHS England’s consideration of the issues are set out below:

2.36 Would granting the application cause significant detriment to the proper planning of the provision of pharmaceutical services in the HWB area? (Reg 18(2)(a)(i))

2.36.1 NHS England had no information to demonstrate that the planning of the provision of pharmaceutical services would be significantly affected by the opening of a further pharmacy as there were already a number of different providers offering a range of opening hours.

2.36.2 NHS England was of the view that a granting of the application would not cause significant detriment to the proper planning of provision of pharmaceutical services in the HWB’s area.

2.37 Would granting the application cause significant detriment to the arrangements for the provision of pharmaceutical services in the area? (Reg 18(2)(a)(ii))

2.37.1 NHS England had no information to demonstrate that a granting of the application would cause significant detriment to the arrangements for the provision of pharmaceutical services in the HWB area.

2.37.2 NHS England was of the view that a granting of the application would not cause significant detriment to the arrangements for the provision of pharmaceutical services in the HWB’s area.

2.38 In the absence of any significant detriments as described in Regulations 18(2)(a), NHS England was not obliged to refuse the application and went on to consider Regulation 18(2)(b).

Reg 18(2)(b)(i) – Reasonable choice

2.39 NHS England noted that currently there is no pharmacy located within Harrietsham itself although the Glebe Medical Practice is a dispensing practice. However, the question of choice related to choice with regards to obtaining pharmaceutical services in the area of the relevant HWB. NHS England, therefore, examined the choices currently available to patients within a reasonable travel distance of the best estimate location.

2.40 The nearest pharmacy to the proposed site would appear to be Saxon Warrior Pharmacy (3km distant), which is open for 40 hours per week. There are two other pharmacies located within 10km.

2.41 The Applicant proposed to provide pharmaceutical services for 40 core hours a week and a total of 54 opening hours per week.

2.42 NHS England noted that within the Harrietsham & Lenham ward a relatively high number of residents felt that their health was good or very good. The number of households with 2+ cars/vans was reasonable.

Local GPs: List size Postcode Minutes by Car/Train/Walk* The Glebe 9,423 ME17 1AP N/A MC Len Valley 9,423 ME17 2QF 7min (3.7km)/13min/44min Practice (3.5km)

The Orchard 3,463 ME17 3JY 11min Surgery (8.4km)/1hr28m/1hr33min (7.5km) Southways 6,699 ME17 3HT 15min (10.9km)/1hr22m/1hr57m (9.5km) Local Core Dispensing Postcode Minutes by Car/Train/Walk* Pharmacies: Opening Stats (last 3 Hours months) Saxon Warrior 09:00- 21,491 ME17 2PG 4min (3km)/10min/36min Pharmacy 17:00 (2.9km) Mon-Fri Paydens Ltd 09:00- 48,157 ME14 4LX 10min (8.8km)/17min/1hr47m 13:00,14:0 (8.8km) 0-18:00 Mon-Fri Spires 09:00- 7,700 ME15 8XW 13min (10.4km)/32min/2hr Pharmacy 13:00,14:0 (9.9km) 0-18:00 Mon-Fri 09:00- 13:00 Sat Charing 09:00- 27,167 ME27 0AW 10min (9.6km)/24min/1hr52min Pharmacy 12:30,13:3 (9.2km) 0-18:00 Mon-Fri

2.43 NHS England was not aware of any complaints that had been received about the current level of services provided.

2.44 Therefore, when considering the criteria for reasonable choice in relation to physical access, and the size of the population, the services provided by a range of providers in Harrietsham as well as the GP service provision, NHS England was of the view that there was already reasonable choice with regards to obtaining pharmaceutical services in the area of the relevant HWB. It was considered by NHS England that most of the population’s general needs would be sourced habitually from outside the immediate village, eg in Maidstone or Ashford.

2.45 NHS England therefore found that granting the application, would not confer significant benefits on persons in the area.

Reg 18(2)(b)(ii) – Difficulty of Access (Protected Characteristics)

2.46 In considering Regulation 18(2)(b)(ii) NHS England was aware that it was required to focus on people who share a protected characteristic requiring access to services that meet specific needs for pharmaceutical services that are difficult for them to access. NHS England was also aware of its obligations under the Equality Act 2010 which include considering the elimination of discrimination and advancement of equality between patients who share protected characteristics and those without such characteristics.

2.47 However, the Applicant has not presented any evidence to indicate that there were any persons with protected characteristics who are currently experiencing any difficulty accessing services. If there was a requirement in the area for particular services to address difficulties in accessing services that meet the specific needs of people with protected characteristics, either NHS England or the local Clinical Commissioning Group could commission such a service.

2.48 NHS England was therefore not satisfied that, having regards to the specific needs of those with protected characteristics in the area, that granting the application would confer significant benefits on persons.

Regulation 18(2)(b)(iii) – Providing an innovative approach to the delivery of pharmaceutical services

2.49 In considering Reg 18(2)(b)(iii) NHS England considered the desirability of innovative approaches to the delivery of pharmaceutical services. In doing so, NHS England was expecting provision of services that were ‘over and above’ the standard delivery and range of pharmaceutical services that might be expected from all pharmacies under the NHS contact ie, essential, advanced and enhanced services.

2.50 NHS England agreed that there are no innovative approaches to the delivery of pharmaceutical services in the application.

Decision

2.51 NHS England concluded that it was not required to refuse the application under the provisions of Regulation 31.

2.52 NHS England considered whether the granting of the application would cause significant detriment to proper planning in respect of the provision of pharmaceutical services in the area covered by the HWB, or the arrangements in place for the provision of pharmaceutical services in that area and is not satisfied that it would;

2.53 NHS England determined that the application should be refused on the following basis:

2.53.1 In considering whether the granting of the application would confer significant benefits, NHS England determined that –

2.53.2 There is already a reasonable choice with regard to obtaining pharmaceutical services;

2.53.3 There is no evidence of people sharing a protected characteristic having difficulty in accessing pharmaceutical services; and

2.53.4 There is no evidence that innovative approaches would be taken with regard to the delivery of pharmaceutical services;

2.54 Having taken these matters into account, NHS England was not satisfied that granting the application would confer significant benefits as outlined above that would secure improvements or better access to pharmaceutical services.

Rights of appeal

2.55 The application is refused so the Applicant has the right to appeal.

2.56 NHS England decided not to grant third party rights of appeal to the decision of NHS England and NHS Improvement to any of the parties that responded during the consultation period, because the application had been refused.

3 Site Visit Report

3.1 Site Visit to Harrietsham

Purpose

3.2 The purpose of the site visit was to determine whether any changes were required to the current rurality determination of the area of Harrietsham.

3.3 The assessment comprised two members (TSSB and VSJ) of the NHS England and NHS Improvement – South East Region PSRC visiting Harrietsham on the morning of Friday 9 August 2019.

Location

3.4 Harrietsham is in the North Downs, lies 7 miles east of Maidstone and Wikipedia cites it as a ‘rural and industrial village’.

3.5 Harrietsham is bisected by A20 (Ashford Road) and bordered on its south by the M20 and by green/arable fields to its north, west and east. Its population in 2011 was 2113; this will have increased due to several new builds since the census.

3.6 The majority and older part of the village lies north of the A20, the three most recent residential developments lie to its south. Southfield Way, Crest Nicholson’s Charity Green and Bellways Bluebell Walk are 1, 2 and 3 respectively. (See picture 1 at Appendix A)

Access

3.7 Harrietsham Train station has a service to Victoria via Maidstone East and to Canterbury West via Ashford International. The passenger usage for Harrietsham increased by over 8 thousand to 82,776 in 2017/2018 from the previous year (source Wikipedia).

3.8 The Stage Coach bus runs 10x daily between Maidstone (25 minutes’ travelling) and Ashford (35 minutes travelling) with a reduced Sunday service. There are bus stops and bus shelters in the village (see below for link to local schedule)

3.9 https://bustimes.org/services/10x-ashford-charing-lenham-harrietsham-maidstone

3.10 Harrietsham has east access to the A20 and the M20. According to Googlemaps Maidstone can be accessed through 3 routes A20, M20/A20 and A229/M20 and A20 all within 20 minutes. Ashford is 21 minutes’ drive using the A20.

Route

3.11 TTSB and VSJ drove into Harrietsham on the eastbound A20 towards the village’s eastern fringe and continued through the village to the ‘Welcome to Harrietsham’ sign at the other end, turning north on to Dickley Lane at the BP service station. Here and on Marley Road the area was more verdant with detached houses and large gardens but coming back into a more concentrated residential area by the Mercer Road turn. Continuing on Marley Road the public field on the south is surrounded on all sides by older housing except for the St John the Baptist Church on the north side.

3.12 TSSB and VSJ turned south on to Church Road, passing 1950’s residential areas on the right and the Glebe Medical Centre on the left, to re-join the A20. At this junction, on the other side of the A20 is the new Armistice Way, entrance to Chantry Green , the Crest Nicholson development.

3.13 At the Bellway site, Bluebell Walk, there was no access at it was very much in development. The site access was gated off with clear signs stating the area was not accessible.

opposite on West St is also open daily. There is a very small M&S shop in the BP petrol station at the outskirts of Harrietsham.

3.15 Following Southfields Way down its course, it is clear that this area has been tens of recent new build houses. Using Rightmove Sold data it suggests that these houses were released from the end of 2016.

3.16 www.rightmove.co.uk/house- prices/detail.html?country=england&locationIdentifier=POSTCODE%5E4589163&sea rchLocation=ME17+1GE&columnToSort=ADDRESS&referrer=listChangeCriteria

3.17 The drive continued into the older part of the village, down West Street, a 30mph zone, passing the Premier Convenience Store, The Roebuck public house, the sheltered bus stop, the Post Office and through to the Church of England Primary School. The residential area has mixed housing throughout though predominately detached or semi-detached. There are a few small terraces. The school is opposite tens of Crest Nicholson new build homes released within the last decade, and is reached by a narrow road and a single, narrow pavement which becomes grassed by the school approach.

3.18 TSSB and VSJ noted the Business Centre advertising vacant plots, the signs to the Village Hall, the Kingdom Hall of Jehovah’s Witnesses and Rectory Care Home.

Recent new builds

3.19 Harrietsham is markedly a location for new build developments. There are several pockets of new residential areas throughout the village, both north and south of the A20.

3.20 The most recent development, Bellway’s Bluebell Walk, is still under construction (picture 2). The Bellway website is advertising its new launch offering of 8 different style homes. The site shows 58 plots excluding some affordable housing shown in the top right. See picture 3 below. The site plan suggests residents with a high percentage of car ownership as the houses are shown predominately with private drives or garages.

3.21 Picture 2: Bluebell Walk construction Site (Appendix A)

3.22 Picture 3: Bluebell Walk Site Plan (Appendix A)

3.23 Picture 4: Bluebell Walk Launch website (Appendix A)

3.24 At the development of Chantry Green, the Crest Nicholson Office was closed but a Crest Nicholson staff member advised that all 96 houses had been completed with only 3 remaining unsold. The majority of homes were clearly occupied with planted up front gardens, visible individual furnishings and cars parked in the driveways.

3.25 Picture 5: Chantry Green Main access and Show Office (Appendix A)

3.26 Picture 6: Chantry Green Armistice Way (Appendix A)

3.27 Picture 7: Chantry Green Site Plan (Appendix A)

3.28 Southfield Way is an ongoing new build as the current Googlemaps picture below shows. The Premier Convenience store on the West Street can be seen in the fore and centre of the image; and the Co-op store is shown on the opposite side of the A20 clearly still being built.

3.29 Picture 8: The Southfield Way new build and Co-op (Appendix A)

3.30 Please see below the completed Co-op store and please note the convenience store’s yellow and purple logo in the background centre.

3.31 Picture 9: The Co-op, Harrietsham (Appendix A)

Findings

3.32 The overall impression is that Harrietsham was surrounded by green fields and with considerable distance to neighbouring town and villages.

3.33 Crest Nicholson and Bellway both highlight in their sales’ brochures the village’s peaceful feel and the rural retreat that Harrietsham offered, and for shopping, leisure and other civic activities residents are directed to Maidstone or beyond.

3.34 Although there was no obvious sign of agricultural activities, the village did appear rural in so far as there were very limited commercial and civic facilities, minimal employment and only one educational facility; and that Harrietsham was surrounded by green belt.

3.35 However there has been, and continues to be, much new build in Harriethsam in the last decade. The increase in population is clear. As said above, the village is bordered by the M20 to the south and by fields at all other points.

Recommendation

3.36 Despites its recent but still limited housing stock increase, the village’s facilities and amenities have not followed suit. Although the population has grown, Harrietsham retains the character and limited infrastructure of a village.

3.37 Following the evidence from the site visit, the recommendation is that Harrietsham retains its rural status though this should be subject to regular review.

4 The Appeal

In a letter dated 2 October 2020 addressed to NHS Resolution, the Applicant appealed against NHS England's decision. The grounds of appeal are:

4.1 The Applicant would say that NHS England misdirected itself in its refusal determination regarding the application for the following reasons:

4.2 No evidence of a site report findings was adduced.

4.3 NHS England failed to address Regulations 18(2)(b)(i)

(b) whether, notwithstanding that the improvement or better access were not included in the relevant pharmaceutical needs assessment it is satisfied that, having regard in particular to the desirability of –

(i) there being reasonable choice with regard to obtaining pharmaceutical services in the area of the relevant HWB (taking into account also the NHSCB’s duties under sections 13I and 13P of the 2006 Act (b) (duty as to patient choice and duty as respects variation in provision of health services))

4.4 The Applicant’s application offering better/improved access to pharmaceutical services with a significantly more accessible location and convenient opening hours.

4.5 The Applicant’s application has proposed core opening hours of 40 hours in order to secure unforeseen benefits. The Applicant also proposes that supplementary hours will be provided guaranteeing a total of 54 hours a week to respond to patient need and any additional GP hours. Therefore, improved better access is to be available during

weekdays AND on a Saturday as again there is no provision of pharmaceutical services locally.

4.6 The unforeseen benefits:

4.6.1 Access to comprehensive pharmaceutical services

4.6.2 Pharmaceutical services available at the location where local retail services are accessed

4.6.3 Securing reasonable choice in terms of distance and residents’ ability to access pharmaceutical services

4.6.4 Better/improved access via comprehensive guaranteed hours

4.7 NHS England report identifies a substantial population at Harrietsham

4.8 As NHS England have stated there is only one pharmacy within a 5-mile radius of the proposed location. That pharmacy is 3km away. It is therefore not within a reasonable walking distance for mothers with small children, the elderly and disabled people without access to a car.

4.9 NHS England failed to put any weight on the demographics of Harrietsham, which has a higher than average population over 65 and a lower than average car ownership.

4.10 NHS England failed to put any weight on the poverty of public transport from Harrietsham to the nearest pharmacies.

4.11 NHS England failed to put sufficient weight on the Applicant’s assertions adduced in relation to persons with particular characteristics.

4.12 The Applicant is not claiming innovative services. NHS Resolution will be aware that only one of the three Regulatory tests need to be satisfied.

Conclusion

4.13 The Applicant would say that on at least the balance of probabilities NHS England were incorrect to refuse consent for NACAD 8 Limited to join the pharmaceutical list in Harrietsham.

4.14 The Applicant therefore respectfully invites NHS Resolution to grant consent to the Applicant.

4.15 The Applicant confirms its willingness to attend a local Oral Hearing if the Committee are unable to make a decision on the papers.

5 NHS Resolution obtained a copy of NHS England’s Site Visit report as part of the relevant paperwork, which it noted had not been seen by parties. NHS Resolution therefore used its discretion under Schedule 3, Part 2, Paragraph 7, and circulated a copy of NHS England’s Site Visit report to parties together with the appeal and provided parties the opportunity to make representations on NHS England’s Site Visit report, including the Applicant.

6 Summary of Representations

This is a summary of representations received on the appeals.

6.1 LEN VALLEY PRACTICE

6.1.1 Len Valley Practice refers to NHS Resolution’s correspondence of 11 November 2020 informing of the two above competing Pharmaceutical Applications to join the Pharmaceutical List at different addresses in Harrietsham have been appealed. Len Valley Practices’ interests are significantly affected by these applications as it is a dispensing medical practice with a branch surgery in Harrietsham.

6.1.2 Len Valley Practice would say the following in response to both appeals:

6.1.3 Rushport on behalf of the Applicant Jacash Ltd in its appeal have stated that:

6.1.3.1 ‘they have competing applications from both the local provider of Medical Services and the local provider of Pharmaceutical Services who have both identified the requirement for a pharmacy in Harrietsham’.

6.1.3.2 Rushport go on to state that ‘NACAD 8 Limited is a competing application is effectively made by a local GP practice’.

6.1.3.3 These statements and others elsewhere in Jacash Ltd’s appeal are at best erroneous for a number of reasons.

6.1.3.3.1A provider of Medical Services could not make a Pharmaceutical Application.

6.1.3.3.2The partners of Len Valley Practice are neither shareholders nor directors of either applicant.

6.1.3.3.3A search of Companies House on 13 November 2020 showed that the sole director and shareholder of NACAD 8 is Mr N Morley and that in the past the only other stakeholder was a pharmacist Mr C Bakes.

6.1.3.3.4Len Valley Practice have not identified a need for a pharmacy in Harrietsham but expressed an opinion when consulted that on the balance of probabilities it might be beneficial in its response to the 45-day consultations.

6.1.3.3.5There is no contractual agreement between the partners with NACAD 8 to purchase the equity from Mr Morley if their application was to be successful.

6.1.4 Len Valley Practice do not deny its support for the application by NACAD 8 which is an independent Limited company whose sole director Nigel Morley MRPharmS is well known to and respected by us. Likewise, Len Valley Practice dispute it would benefit from a commercial tenancy from NACAD 8 if they were to establish a collocated pharmacy as the Practice are tenants and the rent would benefit the Landlords the Parish Council.

6.1.5 However, the building requires refurbishment and extension and the pharmacy rent would help secure this. In this respect NACAD 8’s application will secure the future of medical services at the Harrietsham site. Len Valley Practice are and have been in extensive discussions with Harrietsham Parish Council regarding the upgrading of the building.

in the past have been largely unsuccessful. For example, Saxon Warrior Pharmacy has refused to work with Len Valley Practice on its recall system for patients on repeat medication, a non-commissioned service. There is an open invitation to SWP to attend weekly clinical meetings at LVP but the only attendance that it can recall was one visit to gather information about the introduction of Primary Care Networks, when they were first introduced.

6.1.7 Len Valley Practice do not deny that Mr Morley has assisted them during the pandemic crisis, when the practice was particularly stretched, with its response, but it is mendacious to infer from this that the practice and NACAD 8 are ‘the same organisation.’

6.1.8 Len Valley Practice do not accept the argument by Jacash Ltd that ‘Len Valley Practice has accepted my client’s application will provide longer opening hours for patients’. In fact, NACAD 8 have stated that they will at least mirror the surgeries opening hours and warrantied to the partners the same.

6.1.9 Jacash Ltd make some unfortunate comments about the Len Valley Practice and its appeal. Len Valley Practice would reassure NHS Resolution that Len Valley Practice certainly did not close during the pandemic, it continued to offer medical services during the normal contractual working hours. In common with general practices up-and-down the country it switched to a system of telephone triage with reduced face-to-face consultations, to reduce the risk of contracting and spreading coronavirus during the pandemic. Len Valley Practice were also affected by staff having to isolate and shield. To maintain a safe service at a very challenging time it reluctantly temporarily withdrew the bulk of its services to the Lenham site. Len Valley Practice were also mindful that the Harrietsham Surgery may be required as a backup site should it have to close the Lenham site due to contamination. Len Valley Practice reopened the Harrietsham surgery as soon as it was able. In the meantime, the practice organised increased deliveries for housebound patients and those having difficulty accessing the Lenham site. The practice funds a delivery van driven by volunteer drivers to deliver medication to patients struggling to attend the premises. Len Valley Practice have funded this service for many years and will continue to do so. It is sure that the committee will appreciate the last few months have been exceptional and that they are not a template for post- Pandemic services.

6.1.10 LVP has very good working relationship with other neighbouring pharmacies but unfortunately attempts to work collaboratively with Saxon Warrior Pharmacy have been fraught with difficulties. These are well documented and NHS England is aware of the issues concerned, having been involved by Len Valley Practice in the past.

6.1.11 Len Valley Practice is very dubious about the financial viability of a pharmacy in Harrietsham with at best 2818 patients provided the non-reserved location status of Harrietsham is validated. It is for this reason that the practice did not make its own application using a body corporate controlled by the partners.

6.1.12 In section 4 information in support of the application Len Valley Practice robustly disagrees with the assertion that Jacash Ltd make about choice. It is indisputable that both of the two pharmacies owned by the same body corporate offer no choice of provider. It is likewise indisputable that NACAD 8 Limited is not owned or operated by the same people as the practice. Len Valley Practice agree however that the pharmacy will be collocated with its medical practice at Harrietsham. This would offer a de facto one stop shop owned by a different pharmaceutical provider to the nearest local pharmacy. This would provide true competition and an alternative choice which must be the advantage to the community during the difficulties of the pandemic and into the future.

6.1.13 With respects to Jacash Ltd’s comment stating that The Glebe Medical Centre only operates as a collection point for patients’ medication this is totally incorrect. The practice does dispense acute medication from Harrietsham Surgery from stock held specifically at the branch.

6.1.14 Jacash Ltd’s proposed site is not central to the village and is difficult to access across the busy A20. The scale of the map adduced by Jacash Ltd is misleading it does not show their site relative to the population density of Harrietsham. Access to the bulk of the village population would be via the busy A20 (a major trunk road) with major safety connotations. Len Valley Practice’s site is safe to access by both car and by pedestrians. It has ample parking making a one stop shop for persons accessing Medical Services. This would reduce the carbon footprint. Len Valley Practice would say its location offers a better site to provide Pharmaceutical Services to all patients accessing Harrietsham.

6.1.15 The practice agrees that if a pharmacy application is to be granted only one should be and that it should be given to NACAD 8.

6.1.16 For the avoidance of doubt the practice is committed to working constructively with all healthcare providers including the nearest local pharmacy. It too shares disappointment with the relationship with Jacash Ltd in general and the pejorative comments regarding the practice expressed by Rushport Advisory LLP in particular.

Conclusion

6.1.17 Len Valley Practice would say that NACAD 8 application is to be preferred as it is collocated with a medical practice unlike the competing application of Jacash Ltd and will offer genuine choice of pharmaceutical providers.

6.1.18 The practice is confident that NACAD 8 will at least mirror the surgeries opening hours and that they can enjoy a good working relationship. Len Valley Practice are not reassured that that would be the case with Jacash Ltd. A good working relationship with the owners of a pharmacy can only be beneficial for its patients.

6.1.19 Len Valley Practice would say that on at least the balance of probabilities that only one grant of consent to join the Pharmaceutical List of NHS England should be granted at Harrietsham and that it should be given to NACAD 8. Len Valley Practice respectfully invites the Authority so to determine.

6.1.20 Len Valley Practice confirms its willingness to attend or participate in an Oral Hearing whether physical or virtual if constituted by the Authority.

6.2 NACAD 8 LTD

6.2.1 On behalf of NACAD 8 it would say the following in response to the appeal by Rushport Advisory LLP on behalf of Jacash Ltd.

6.2.2 In respects of its appeal as a generalisation it appears to read as verbose repetitive, erroneous and understandably partisan and self-seeking.

6.2.3 As a detailed critique of Jacash Ltd’s appeal they have made the following points which NACAD 8 comment on as follows.

6.2.4 That there is agreement by all parties with the exception of NHS England that a Grant of Consent to join the Pharmaceutical List at Harrietsham should be given.

6.2.4.1 NACAD 8 concur with Jacash Ltd.

6.2.5 The only one Grant of Pharmaceutical Consent at Harrietsham should be made.

6.2.5.1 NACAD 8 concur with Jacash Ltd.

6.2.6 That NACAD 8 Ltd and the Len Valley Medical Centre are the same potential provider of Pharmaceutical Services and therefore unlike Jacash Ltd’s application does not provide a choice of Pharmaceutical Services.

6.2.6.1 This NACAD 8 disagree with and indeed would say that its application offers genuine choice of pharmaceutical providers unlike the Jacash Ltd application for the following reasons:

6.2.6.2 NACAD 8 Ltd has one sole director and shareholder, that is Mr Nigel Morley. Mr Nigel Morley has no written or oral agreement to sell any or all of the equity to any third party including the partners of Len Valley Practice. Mr Nigel Morley has been a director of NACAD 8 Ltd since 2010 formerly in partnership with a fellow pharmacist Mr C Bakes. Mr Nigel Morley has no involvement either clinically or financially with the practice.

6.2.6.3 If NACAD 8 Ltd were granted consent to join the Pharmaceutical List collocated at Glebe Medical Practice, Harrietsham would enjoy undoubtedly a close but independent professional relationship with the partners. However, its pharmacy would provide benefits to all patients from whichever medical provider they were registered with.

6.2.6.4 If a grant of pharmaceutical consent was made to Jacash Ltd (which NACAD8 Ltd do not concede), then the two available pharmaceutical providers to Harrietsham would both be owned and operated by the same body corporate. No competition and no incentive to excel because there will be no genuine choice.

6.2.6.5 If a grant of pharmaceutical consent was made to NACAD 8 Ltd however, the two nearest pharmaceutical providers to Harrietsham would be owned and operated by two competing body corporates. There would be genuine choice and incentive to compete in providing exemplary pharmaceutical services.

6.2.7 That Jacash Ltd’s site location is to be preferred to that of NACAD 8’s.

6.2.7.1 Len Valley Practice inform me that:

6.2.7.2 “Jacash Ltd’s proposed site is not central to the village and is difficult to access across the busy A20. The scale of the map adduced by Rushport Advisory LLP is misleading it does not show the site relative to the population density of Harrietsham. Access to the bulk of the village population would be via the busy A20 (a major trunk road) with major safety connotations. Len Valley Practice’s site is safe to access by both car and by pedestrians. Len Valley Practice have ample parking making a one stop shop for persons accessing Medical Services. This would reduce the carbon footprint. Len Valley Practice would say its location offers a better site to provide Pharmaceutical Services to all patients accessing Harrietsham.”

6.2.7.3 It is therefore evident that in fact NACAD 8 Ltd’s location is preferable to that of Jacash Ltd’s.

6.2.8 That Jacash Ltd’s application is superior because of greater core hours.

6.2.8.1 NACAD 8 Ltd have agreed with the partners of Len Valley Practice that irrespective of its core hours it would at least mirror the opening hours of the surgery. No such warranty has been provided by Jacash Ltd.

6.2.8.2 NACAD 8 Ltd believe it is reliably informed that Jacash Ltd’s application came as a complete surprise to the Len Valley Medical Practice as no prior discussions had taken place. NACAD 8 Ltd had extensive discussions and feedback from the practice about the pharmaceutical needs of their patients and the criteria for a collocated pharmacy.

6.2.8.3 These provide a clear distinction between the two applications.

6.2.9 NACAD 8 Ltd would also make the following additional points in respect of the superiority of its application over that of Jacash Ltd:

6.2.10 NACAD 8 Ltd would operate in a COVID-19 secure environment and are confident that it would provide exemplary Pharmaceutical Services to patients of the local community whether residential in Harrietsham or visiting for whatever reason. NACAD 8 Ltd would intend to offer innovative services by offering all patients wherever located free of charge pharmaceutical consultations between its pharmacists and their home environment by Skype, Facetime, Messenger, Zoom or Microsoft Teams.

6.2.11 In conjunction with this NACAD 8 Ltd will offer a complimentary delivery service to all patients upon request for both NHS prescriptions and OTC medicines including other traditional pharmaceutical items. This is a clear distinction between the two applications in these difficult and turbulent times.

6.2.12 NACAD 8 Ltd’s innovative and tele pharmacy services will be of particular benefit to persons with protected characteristics who are at greater risk from the morbidity of COVID-19 or future pandemics. Such cohorts include; the elderly, BAME patients, patients with comorbidities, the obese, patients suffering from dementia, cardiovascular or respiratory disease, cancer or diabetes as well as immune-compromised patients.

6.2.13 It is only the dispensing income which enables the practice to provide uniquely in their locality two surgery sites so geographically close together. If they were to lose their dispensing income at Harrietsham branch surgery and are unable to secure the proposed refurbishment of the building including a collocated pharmacy the future for the site providing medical services at Harrietsham is doubtful.

6.2.14 The practice are in discussion with the Parish Council and an architect to draw up plans to upgrade the building in general and for a pharmacy/dispensary extension in particular. The rent from NACAD 8 will secure this. Therefore, NACAD 8 Ltd’s application would decure the future of quality medical services at The Glebe Medical Practice at Harrietsham. This is again clear distinction between the two applications.

Conclusion

6.2.15 NACAD 8 Ltd would say that their application is to be preferred as it is collocated with a medical practice unlike the competing application of Jacash Ltd and will offer genuine choice of pharmaceutical providers. It would also enable the Glebe Medical Centre branch surgery at Harrietsham to remain viable avoiding the risk of closure.

6.2.16 The practice are confident that NACAD 8 Ltd will at least mirror the surgery’s opening hours and that they can enjoy a good working relationship. They are not reassured that the same would be the case with Jacash Ltd. A good working relationship with the owners of a collocated pharmacy can only be beneficial for patients. Irrespective of their choice of medical provider.

6.2.17 NACAD 8 Ltd would say that on at least the balance of probabilities that only one grant of consent to join the Pharmaceutical List of NHS England should be granted at Harrietsham.

6.2.18 NACAD 8 Ltd’s application fulfils all of the three parameters of Regulation 18. As the Committee are aware only one of the three criteria: access and choice, benefits to persons with protected characteristics or innovative services has to be satisfied. NACAD 8 Ltd would say that its application fulfils at least two parameters beyond reasonable doubt.

6.2.19 NACAD 8 Ltd would say that its application for the above reasons is significantly superior to that of the applicant Jacash Ltd. Therefore, Jacash Ltd’s appeal should be dismissed and NACAD 8 Ltd’s appeal likewise against the refusal should be granted. Therefore, the sole grant should be given to NACAD 8 Ltd. NACAD 8 Ltd respectively invites NHS Resolution so to determine on the balance of probabilities.

6.2.20 NACAD 8 Ltd confirms its willingness to attend or participate in an Oral Hearing whether physical or virtual if constituted by NHS Resolution.

6.3 NHS ENGLAND

6.3.1 NHS England wishes to comment on the appeal lodged against its decision in this case.

6.3.2 For ease of reading, the response from NHS England will address the 8 main issues listed in the Letter of Appeal in the same order as that used by Mr Nigel Morley on behalf of NACAD 8 Ltd in the Letter of Appeal dated 2 October which is claiming that NHS England misdirected itself in its refusal determination regarding NACAD 8 Ltd with regards to a number of issues.

“No evidence of a site report findings was adduced.”

6.3.3 NHS England would refute the assertion made by NACAD 8 Ltd that no evidence of a site visit report was adduced. It is clear from the Decision Letter that the Site Visit Report was part of the documentation examined by NHS England when reaching its decision. The Site Visit Report was especially used to reach a view with regards to the degree of housing and other development in Harrietsham with special regards to whether this should impact on the current status of the locality in accordance with regulation 36 and 37. The recommendation of the Site Visit Report was as follows:

6.3.3.1 Recommendation

6.3.3.2 Despite its recent but still limited housing stock increase, the village’s facilities and amenities have not followed suit. Although the population has grown, Harrietsham retains the character and limited infrastructure of a village. Following the evidence from the site visit, the recommendation is that Harrietsham retains its rural status thought this should be subject to regular review.” (Emphasis added)

6.3.4 Based on the Site Visit Report for Harrietsham and the absence of any proposal from either the LPC or LMC that this classification should be changed,

NHS England confirmed in its Decision Letter that Harrietsham should remain a controlled locality within the meaning of regulations 36 of the 2013 regulations. NHS England also noted that NACAD 8 Ltd was not disputing that the best estimate location for the premises, from which it was seeking listing, was, therefore, in a controlled locality.

“That NHS England failed to address Regulation 18 (2) (b) (i)

6.3.4.1 (i) there being reasonable choice with regard to obtaining pharmaceutical services in the area of the relevant HWB (taking into account also the NHSCB’s duties under sections 13I and 13P of the 2006 Act (b) (duty as to patient choice and duty as respects variation in provision of health services)),

Our application offering better/improved access to pharmaceutical services with a significantly more accessible location and convenient opening hours.”

6.3.5 NHS England disagrees with the statement made by NACAD 8 Ltd that it did ‘fail’ to address regulation 18(2)(b)(i). In the Decision Letter NHS England specifically examined whether there was a ‘reasonable choice’ with regards to obtaining pharmaceutical services, but was cognisant of the fact that this assessment should be based on reasonable choice with regards to obtaining pharmaceutical services not in Harrietsham but in the area of the relevant HWB covering Harrietsham and therefore examined the choices available to patients within a reasonable travel distance of the best estimate location.

6.3.6 NHS England also noted that within the Harrietsham, & Lenham ward there was a relatively high number of residents who felt that their health was good or very good and that the number of households with 1 or more car/vans was high as can be seen from the census data mentioned below.

6.3.7 Therefore, when considering the criteria for reasonable choice in relation to access to pharmaceutical services, and taking into account the size of the population, the services available from pharmacies within a reasonable travel distance, the dispensing GP Service provision as well as services provided by Distance Selling providers, NHS England was of the view that there was already reasonable choice with regards to obtaining pharmaceutical services in the area of the relevant HWB. NHS England also considered that most of the general needs by residents in Harrietsham such as most educational, shopping and employment opportunities would be accessed habitually from outside the immediate village e.g. in Lenham, Maidstone or Ashford or beyond.

“Our application has proposed core opening hours of 40 hours in order to secure unforeseen benefits. NACAD 8 Ltd also proposes that supplementary hours will be provided guaranteeing a total of 54 hours a week to respond to patient need and any additional GP hours. Therefore, improved better access is to be available during weekdays AND on a Saturday as again there is no provision of pharmaceutical services locally. The unforeseen benefits: Access to comprehensive pharmaceutical services. Pharmaceutical services available at the location where local retail services are accessed. Securing reasonable choice in terms of distance and residents’ ability to access pharmaceutical services. Better/improved access via comprehensive guaranteed hours PSRC report identified a substantial population at Harrietsham.”

6.3.8 NHS England in assessing applications for market entry and especially better/improved access to pharmaceutical services will only be taking into

consideration the core hours being proposed as supplementary hours can be changed following a notice period. The benefits offered by NACAD 8 Ltd, as mentioned above, are not considered by NHS England to be sufficiently specific as ‘unforeseen benefits’ according to regulation 18 but it is more a listing of broad general pharmaceutical offerings. However, when NHS England assessed the application by NACAD 8 Ltd, it carefully examined each element of the application against the criteria set out in regulation 18 and especially whether the ‘unforeseen benefits’, as argued by NACAD 8 Ltd, would result in a significant benefit being conferred with regards to choice or improvement in pharmaceutical services to persons in the relevant HWB area. Based on this assessment NHS England decided to refuse the application as it found that the criteria were not met.

“As the PSRC have stated there is only one pharmacy within a 5-mile radius of the proposed location. That pharmacy is 3km away. It is therefore not within a reasonable walking distance for mothers with small children, the elderly and disabled people without access to a car.”

6.3.9 The criteria for granting an application under Regulation 18 does not include the requirement to have a pharmacy in every village but is instead focussing on reasonable choice with regards to obtaining pharmaceutical services in the area of the relevant HWB.

6.3.10 The list below illustrates the range of providers within up to 13 minutes car drive from Harrietsham and the core hours available covering weekdays as well as Saturday.

Local GPs: List size Postcode Minutes by Car/Train/Walk

The Glebe MC 9,423 ME17 1AP N/A

Len Valley 9,423 ME17 2QF 7min (3.7km)/13 Practice min/44min (3.5km)

The Orchard 3,463 ME17 3JY 11 min (8.4km) / Surgery 1hr28min / 1hr33min (7.5km)

Southways 6,699 ME17 3HT 15min (10.9km) / 1hr22min / 1hr57min (9.5km)

Local Core Dispensing Postcode Minutes by Car / Pharmacies Opening Stats (last Train / Walk Hours 3 months)

Saxon Warrior 09:00 – 17:00 21,491 ME17 2PG 4min (3km) / Pharmacy Mon-Fri 10min / 36,in (2.9km)

Paydens Ltd 09:00 -13:00, 48,157 ME14 4LX 10min (8.8km) / 14:00 – 18:00 17min / 1hr47min Mon-Fri (8.8km)

Spires Pharmacy 09:00 – 13:00, 7,700 ME15 8XW 13min (10.4km) / 14:00 – 18:00 32min / 2hr Mon – Fri, (9.9km) 09:00 – 13:00 Sat

Charing 09:00 – 12:30, 27,167 ME27 0AW 10min (9.6km) / Pharmacy 13:30 – 18:00 24min / 1hr52min Mon-Fri (9.2km)

6.3.11 NHS England acknowledges that access to pharmaceutical services, besides those provided by the dispensing Glebe Medical Practice in Harrietsham and services provided by Distance Selling pharmacies, requires access to either public or private transport as mentioned by the NACAD 8 Ltd. However, considering the limited general facilities currently available in Harrietsham, it is the view of NHS England that access to most educational and shopping facilities as well as employment also requires access to either private or public transport.

6.3.12 It is important to note that there are good public transport connections available in Harrietsham, as illustrated by the Maidstone Borough Local Plan (adopted October 2017) (Para 4.78) about Harrietsham:

6.3.12.1“The village has good public transport connections to Maidstone and other retail and employment centres.”

6.3.13 This is further supported by the comments from the HWB in its response to the notification exercise for the application. This states:

6.3.13.1“Better Access

The application does not mention the availability of a train service from Harrietsham station. The station at Harrietsham serves trains to Maidstone and onto London Victoria and also trains to Canterbury via Ashford joining up at Ashford with the high speed line to London St Pancras and the Eurostar to the continent. The activity at Harrietsham station appears to be over 80,000 passengers a year either joining or leaving a train here which fits into the concept that this is a commuter village where the family car is left at home.”

6.3.14 The journey options between Harrietsham and Lenham for the 2 miles journey by car or public transport, also confirms the ease by which patients in Harrietsham can access pharmaceutical services within a reasonable travel distance, especially if as mentioned above ‘… the family car is left at home’. With only 7.8% of households having no access to a car, this reflects a very high car ownership e.g. 92.2% of households are car owners, which is far above the national average of 75%.

“The PRSC failed to put any weight on the demographics of Harrietsham, which has a higher than average population over 65 and a lower than average car ownership.”

6.3.15 NACAD 8 Ltd states that the demographics of Harrietsham gives a higher than average population over 65 and that NHS England failed to place any weight on this.

6.3.16 NHS England would wish to refute this. The health of the population in West Kent is generally very good with the West Kent CCG life expectancy at 82.7, which is higher than the Kent life expectancy of 81.7.

6.3.17 https://www.kpho.org.uk/__data/assets/pdf_file/0004/76774/Kent-PNA-2018- WK-Area.pdf p.5

6.3.18 Furthermore, the life expectancy at 65 years for both female and male in the Harrietsham and Lenham Ward is above the Kent average, as can be seen below:

6.3.19 (https://www.kpho.org.uk/__data/assets/pdf_file/0006/45258/Older-people- Maidstone.pdf ).

6.3.20 [Graphs titled “Life expectancy at 65 years, male: by electoral ward” and “Life expectancy at 65 years, female: by electoral ward” at Appendix B]

6.3.21 The age distribution in Harrietsham according to the last census data is:

6.3.22 [Table at Appendix B]

6.3.23 NHS England is not aware of the data source for the Appellant’s statement about a lower than average car ownership as the census data, see below, is providing a rather different picture with only 7.8% of households which have no access to a car which in reality means that 92.2% of households are car owners, which is far above the national average of 75%.

6.3.24 [Table at Appendix B]

“The PRSC failed to put any weight on the poverty of public transport from Harrietsham to the nearest pharmacies.”

6.3.25 NHS England does not agree that there is a poverty of public transport from Harrietsham. As mentioned above in section 4, there are good public transport links to Maidstone, Ashford and beyond just as there are bus services on the route between Harrietsham and Lenham, although it would be expected that the majority of residents would be using private transport due to the extensive private car ownership.

6.3.26 The hourly bus journey between Harrietsham and Lenham takes 7 minutes, see below:

6.3.27 [Bus timetable at Appendix B]

“The PRSC failed to put sufficient weight on our assertions adduced in relation to persons with particular characteristics.”

6.3.28 NHS England, when examining the application from NACAD 8 Ltd, paid particular attention to section 6.2.4 (i) in the application, which was referring to access for people who share a protected characteristic:

6.3.28.1“Better Access to Pharmacy Services for Older People

We have already eluded to the fact that we note that over-65s represent a significant proportion of the population in Harriethsam with the accompanying risk of long term conditions i.e. this group of people share a protected characteristic as identified in the NHS (Pharmaceutical Services) Regulations 2013 [Part 2, Para 18 (2)(b)(ii)].”

6.3.29 The above section refers to a group of the over-65’ as a group of people who share a protected characteristic. However, the criteria in regulation 18 (2)(b)(ii), against which NHS England has to assess the application, is that it has to satisfied that people who share a protected characteristic are having access to services that meet specific needs for pharmaceutical services, that are difficult for them to access in the area of the relevant HWB covering Harrietsham.

6.3.30 NACAD 8 Ltd, in the original application, refers to high level of elderly and growing number of young and although these might fall into groups with protected characteristics, no information was provided with regards to these groups having problems accessing services that meet their specific needs, nor was there any information provided to indicate the nature of these specific shared needs for pharmaceutical services.

6.3.31 To generally state that groups of individuals within Harrietsham share protected characteristics, and that these may be expected to have difficulties accessing pharmaceutical services, is making assumptions about needs and is not equivalent to providing evidence of neither specific needs nor specific difficulties in accessing pharmaceutical services.

6.3.32 Additionally, the number of people who described themselves as having fair to very good health in Harrietsham is, according to the census data, as high as 95,3%, as can be seen below.

Very good health 1,021 48.3

Good health 692 32.7

Fair health 300 14.2

Bad health 76 3.6

Very bad health 24 1.1

6.3.33 Furthermore, NHS England was not aware of any complaints been made about lack of access to services.

6.3.34 NHS England was, therefore, not satisfied that, having regard to the desirability of people who share a protected characteristic having access to services that meet specific needs for pharmaceutical services, that the current services are difficult for them to access, and that granting the application would confer significant benefits on such persons.

“We are not claiming innovative services. The appeals authority will be aware that only one of the three Regulatory tests need to be satisfied.”

6.3.35 In considering an application for Unforeseen Benefits under Regulation 18, NHS England has to assess the application against all the criteria under Reg 18, including the criteria concerning whether an application is providing an innovative approach to the delivery of pharmaceutical services according to Regulation 18(2)(b)(iii). In doing so, NHS England was expecting provision of services that were ‘over and above’ the standard delivery and range of pharmaceutical services that might be expected from all pharmacies under the NHS contract i.e., essential, advanced and enhanced services. NHS England notes that the in the Letter of Appeal is not claiming to provide innovative services.

Overall

6.3.36 NHS England remains of the view that there was no evidence provided to suggest that the population, in the best estimate location for the application, currently has neither a reasonable choice nor access to pharmaceutical services. Therefore, it is not satisfied that granting the application would confer significant benefits on persons. It is also mindful that where it considers there is a need to do so, NHS England already has the power to bring about changes to the opening hours of existing pharmacies in the relevant area of the HWB.

6.3.37 In considering an application for unforeseen benefit NHS England must assess the application against the various requirements set out in Regulation 18. Firstly, Regulation 18(1)(a) needs to be satisfied in that NHS England is required to determine whether it was satisfied that granting the application or granting it in respect of some only of the services specified in it, would secure improvements, or better access, to pharmaceutical services, or pharmaceutical services of a specified type, in the area of the relevant HWB. Having been satisfied that this was the case, NHS England also had to be satisfied that the application meets the other criteria as set out in Regulation 18(1)(b) and Regulation 18(2).

6.3.38 In assessing the application against the other criteria in Regulation 18, NHS England’s decision letter explicitly set out the reasons why these criteria were not met.

6.3.39 NHS England, when considering the criteria for reasonable choice, took into account the relevant PNAs, the comprehensive data relating to the physical access, barriers to access, the health, size, and demography of the local population, as well as the car ownership profile. In addition, NHS England assessed the services provided by the existing range of pharmaceutical service providers and their core opening hours; as well as the pharmacies’ locations and the nature of the journeys (time, travel mode and distance) required to reach them. Deliberating on all this, NHS England reached the decision that there was already a reasonable choice with regards to obtaining pharmaceutical services in the area of the relevant HWB.

6.3.40 Furthermore, NHS England was not aware that any complaints have been received about the current level of services provided. Conclusion Firstly, in reaching its decision to refuse NACAD 8 Ltd’s application under Regulation 18, NHS England carefully considered the relevant Kent and West Kent Pharmaceutical Needs Assessments conscious that the documents provide a full, in-depth and evidenced analysis of the situation as it was assessed at the date of publication (March 2018) and other relevant supporting documents. NHS England was mindful of the fact that, under Regulation 6(2) of the NHS (Pharmaceutical Services) Regulations ("the 2012 Regulations") [sic], the body responsible for the PNA must make a revised assessment as soon as reasonably practicable (after identifying changes that have occurred that are relevant to the granting of applications) unless to do so appears to be a disproportionate response to those changes. Where it appears disproportionate, the responsible body may, but is not obliged to, issue a Supplementary Statement under regulation 6(3). Such a statement then forms part of the PNA. Although Supplementary statements have been issued following the publication of the PNA, none of these refers to matters relevant to the application for a new pharmacy made under Regulation 18 in Harrietsham.

6.3.41 NHS England noted that the recent 2018 PNAs and supporting documents do not consider that there are any gaps at the moment in the provision of pharmaceutical services in the area of the proposed site for NACAD 8 Ltd’s pharmacy application.

6.3.42 Secondly, NHS England is also of the view that no specific information was provided by the NACAD 8 Ltd to demonstrate that there is significant difficulty for people who share a protected characteristic to have their need for pharmaceutical services met, or anyone else in accessing current pharmaceutical services; or that a pharmacy at the proposed site would improve access significantly for patients in the area of the relevant HWB.

6.3.43 NHS England acknowledges, however, that with any application for a new pharmacy some might find it convenient to have a pharmacy close to hand; but this is not, in itself, a determining factor. Also, there is already a reasonable choice of established local providers of pharmaceutical services within a reasonable travel distance in addition to Distance Selling Pharmacies and, between them, they provide reasonable core opening hours throughout the weekdays with some coverage during the Saturdays

6.3.44 Therefore, NHS England considers that, to have a pharmacy in the proposed location in Harrietsham, will not result in a significant benefit being conferred with regards to choice or improvement in pharmaceutical services to persons in the relevant HWB area and is, therefore, of the view that NACAD 8 Ltd’s application did not meet the criteria set out under Regulation 18.

6.3.45 NHS England wishes to maintain its view that the application should be refused.

7 Observations

7.1 NHS ENGLAND

7.1.1 Further to your letter dated 14 December 2020 requesting final observations relating to the above appeals, NHS England attaches information that was requested in the appeal documents, but it did not have access to when the original representations were submitted.

7.1.2 Summary of dispensing and non-dispensing patients per GP surgery

7.1.3 Dispensing surgeries and numbers of patients living within 1.6km of 'ME17 1AP' (this postcode was used for both applications):

Total non-dispensing patients within 1.6km 165

Total dispensing patients within 1.6km 2810

Number of dispensing and non-dispensing patients 109854 registered in above practices

G82123 – Balmoral 0 1 4783 0 4783 Gardens G82164 – The Vine 0 1 12589 0 12589 G82222+ - Sutton 16 2 1022 5687 6709 Valence GG82604 – 0 11 14638 0 14638 Northumberland Court G82691 – Langley 7 1 1786 1676 3462 G82719 – Matrix Medical 0 1 7968 0 7968 Practice G82790 – Old School 2 0 683 5394 6077 Surgery ZZZ 0 6

7.2 RUSHPORT ADVISORY LLP ON BEHALF OF JACASH LIMITED

7.2.1 In relation to the matters raised Rushport Advisory LLP provide the following information in rebuttal.

NACAD 8 Limited

7.2.2 Mr Morley claims that approving the NACAD 8 Ltd application over the Applicant’s application would offer “genuine choice” and that he has “no written or oral agreement to sell any or all of the equity to any third party including the partners of Len Valley practice”.

7.2.3 As the Committee will doubtless be aware, Mr Morley’s principal activity is to represent dispensing doctors who are either seeking to open a pharmacy or oppose the opening of a pharmacy. NACAD 8 Limited is a dormant company that has never traded in the 10 years since it was incorporated. It, like the other NACAD companies before it (Companies House shows NACAD 2,3,4,5,6,7,8,9 and 10) are all dissolved or dormant after being used, often to make pharmacy applications, and then dissolved.

7.2.4 Mr Morley would have the Committee believe that in this instance he would intend to operate this community pharmacy and has no agreement with the doctors whom he is representing about what to do with such a pharmacy. Mr Morley tells the Committee what he does not have. He says he has “no written or oral agreement to sell any or all of the equity to any third party including the partners of Len Valley practice”. It is notable that Mr Morley does not tell the Committee what agreement he does have.

7.2.5 By discussing the agreement or otherwise between NACAD 8 Limited and the Len Valley Medical Practice and using this to further his case, Mr Morley has waived and privilege or confidentiality in relation to this agreement.

7.2.6 The Committee may conclude that the evidence provided by Mr Morley is a deliberate attempt to mislead them and to disguise the true nature of his work with and instructions from the doctors (which have not been disclosed).

Which Application Should be Preferred?

7.2.7 Unlike the application from NACAD 8 Limited, the Applicant has provided a significant amount of evidence to show why their application meets the legal test under regulation 18. In addition, my client has provided evidence from patients that demonstrate their difficulties in accessing existing pharmaceutical services.

7.2.8 The Applicant provides an alternate location which is central within Harrietsham, thus providing a choice of location.

7.2.9 Mr Morley contends that granting the Applicant’s application would not provide choice as the two available pharmaceutical providers to Harrietsham would both be owned and operated by the same body corporate. However this cannot be correct as Mr Morley also contends that the Applicant’s existing pharmacy is too far away from Harrietsham to be able to provide effective service to the village.

Site Location

7.2.10 The Applicant provides an alternate location which is off the main A20 within Harrietsham, thus providing a choice of location. Mr Morley describes the scale of the map provided as misleading and we are happy to provide the Committee with a map that shows the location of the premises the Applicant would use and which is attached to this letter. It is perfectly obvious with basic inspection that the Applicant’s premises offers better visibility of premises in a better location for a retail pharmacy.

Core Hours

7.2.11 Mr Morley claims to have provided a “warranty” on opening hours. As the Committee will be aware, no such “warranty” either has or can be provided in a way which would be binding other than by offering core hours – which is what my client has done.

7.2.12 Mr Morley claims to have had extensive discussions about the pharmaceutical needs of patients, yet he and his client did not identify any such needs until the Applicant made their application for inclusion in the pharmaceutical list.

Other Points Raised

7.2.13 Mr Morley then offers some other points of differentiation between the two applications which are;

7.2.14 A COVID-19 Secure Environment – any new business should offer this and my client would of course comply with relevant guidance in respect of safe opening. One of the biggest difficulties in providing such an environment is having enough space to allow for social distancing. The surgery does not have such space and there is no room at the surgery to allow for the opening of a pharmacy that could provide a safe environment. This is self-evident from the fact that the doctors closed the surgery premises during the pandemic and the doctors accept that this occurred.

7.2.15 Innovative Services – In his original application dated 25 November 2019 Mr Morley claimed that his application would offer innovation (see para 6.2.6). Then in his letter of appeal dated 2 October 2020 Mr Morley stated;

“We are not claiming innovative services. The appeals authority will be aware that only one of the three Regulatory tests need to be satisfied.”

7.2.16 Now Mr Morley has reversed his position again and is claiming innovation in support of his application. However, a delivery service and the use of video consultation is not in any way innovative. As the Applicant already offers this in their existing pharmacy one can only assume that Mr Morley / the doctors view the Applicant as an innovator already.

7.2.17 The Applicant simply disagrees with the other points raised by Mr Morley.

Len Valley Practice

7.2.18 The comments made by Len Valley Practice in respect of their arrangements with NACAD 8 Limited are already covered above. It notes that the practice uses slightly different language to describe their relationship, saying that;

“There is no contractual agreement between the partners with NACAD 8 to purchase the equity from Mr Morley if their application was to be successful.”

7.2.19 As a matter of law, the reference to the agreement between NACAD 8 Limited and doctors and their use of this to support a particular applicant waives confidentiality. It is notable that despite this the doctors also say what they do not have but not what arrangement is in fact in place or has been discussed.

7.2.20 The practice acknowledges that their building “requires refurbishment and extension”. From its own investigation and site visit it is impossible to see how a pharmacy could be incorporated into the existing footprint of the building in a way that would provide safe and effective access.

7.2.21 The practice states;

Rushport make some unfortunate comments about our practice and its appeal. We would reassure NHS Resolution that Len Valley Practice certainly did not close during the pandemic, we continued to offer medical services during our normal contractual working hours.

7.2.22 It is unclear which comments are being referred to as “unfortunate” and it strives to ensure accuracy in every submission made. The practice accepts that the Harrietsham Surgery did close its premises during the pandemic.

7.2.23 The practice states that they “switched to a system of telephone triage with reduced face-to-face consultations”. Indeed at the Harrietsham Surgery the level of reduction was 100%. The Applicant does not criticise the practice for this as it was common across the country. It simply points out that it is relevant when considering where a pharmacy should be situated within the village. Having two locations is better than having only one. Indeed, whilst the practice states that “Len Valley Practice did not close…” this may be true of their second surgery outside Harrietsham, but this is plainly not true about Harrietsham. The notice in their window currently makes this very clear as the surgery is “closed until further notice” from 14 December 2020 and it is not clear if this has anything to do with the COVID pandemic. (see picture at Appendix C)

7.2.24 It notes that the practice continues to make disparaging remarks about the Applicant. This is not helpful and this is not the appropriate forum for the practice to raise such issues. The Applicant agrees that their attempts to work with the practice have been “fraught with difficulties” and looks forward to working with the practice in the future in a more constructive way.

7.2.25 It notes that practice’s comments that “The practice does dispense acute medication from Harrietsham Surgery from stock held specifically at the branch.”. It is not clear under what lawful mechanism this is provided not why the practice chooses only to provide “acute” medication and not all medication to eligible patients. Irrespective, we are grateful for the confirmation that, even if some pharmaceutical service is provided from the existing medical centre, it is limited to only acute medication. This means that approximately 80% of medication is not provided for at all even though the practice claims that it can lawfully dispense at the Harrietsham Surgery.

7.2.26 It is difficult to understand how the practice and Mr Morley can sensibly claim to have had detailed discussions about the pharmaceutical needs of patients

and identified the need for a pharmacy to serve all patients when they actively choose not to serve the needs of those patients that they claim to be permitted to serve at present.

7.2.27 In respect to the choice of location the practice makes unsubstantiated and evidence free comments about “major safety connotations” associated with the Applicant’s proposed premises. No such “safety connotations” exist.

NHS England

7.2.28 It notes that NHS England has only submitted comments on the NACAD 8 Ltd appeal.

7.2.29 In its submission the application from Jacash Limited should be preferred because;

7.2.29.1 The Applicant has now secured premises in which they will be able to open the pharmacy and has provided evidence of this.

7.2.29.2 The Applicant has provided evidence of patients who share protected characteristics having difficulty in accessing existing pharmaceutical services.

7.2.29.3 The Applicant’s premises will be on the main road through the village, in comparison to the premises proposed by NACAD 8 Limited which are not central or visible from the main road.

7.2.29.4 The Applicant’s application provides reasonable choice.

7.2.29.5 The Applicant is offering longer core opening hours than are offered by NACAD 8 Limited and can therefore guarantee access to pharmaceutical services to patients for more hours every week.

7.2.29.6 All parties, including the provider of local medical services, the nearest pharmacy, the Health and Wellbeing Board, and the LPC agree that a new pharmacy should be permitted to open in Harrietsham. All except NHS England who continue to rely on the existing PNA even when the Health and Wellbeing Board that publishes the PNA has made it clear that it can no longer be relied upon.

7.2.30 It looks forward to hearing from you in due course.

7.3 NACAD 8 LTD

7.3.1 On behalf of NACAD 8 it would say the following in response to these responses.

7.3.2 NACAD 8 notes that the competing applicant and their representative have commented on its appeal. From past experience it is likely that they will comment at this last 10-day stage. It trusts that it would be allowed to comment on any such observations by them. Also, any new evidence adduced by them be respectfully discounted by yourselves.

7.3.3 It notes the robust defence of their determinations by NHS England. They have not indicated a preference understandably for either of the two applications. It would suggest that if NHS Resolution is minded to grant a consent that this would be most effectively and justly determined by an oral hearing. It confirms its willingness to attend or participate in such if constituted whether physically or virtually by Microsoft Teams.

Conclusion

7.3.4 Nothing in the responses it has seen causes NACAD 8 to demur from its adduced conclusion in its initial appeal. It repeats this verbatim as follows:

7.3.5 It would say that the NACAD 8 application is to be preferred as it is collocated with a medical practice unlike the competing application of Jacash and will offer genuine choice of pharmaceutical providers. It would also enable the medical practice branch surgery Harrietsham to remain viable avoiding the risk of closure.

7.3.6 The practice are confident that NACAD 8 will at least mirror the surgery’s opening hours and that they can enjoy a good working relationship. They are not reassured that the same would be the case with Jacash. A good working relationship with the owners of a collocated pharmacy can only be beneficial for patients. Irrespective of their choice of medical provider.

7.3.7 It would say that on at least the balance of probabilities that only one grant of consent to join the Pharmaceutical List of NHS England should be granted at Harrietsham.

7.3.8 It would say that its application for the above reasons is significantly superior to that of the appellant Jacash. Therefore, Jacash’s appeal should be dismissed and NACAD 8’s appeal likewise against refusal should be granted. Therefore, the sole grant should be given to NACAD 8. It respectfully invites the Authority so to determine.

7.3.9 It confirms its willingness to attend or participate in an Oral Hearing whether physical or virtual if constituted by the Authority.

8 Further Comments

8.1 THE APPLICANT

8.1.1 On behalf of the Applicant it would say the following in response to the responses:

8.1.1.1 It is disappointed in the pejorative response by Rushport on behalf of Jacash, it would appear that much of their response is at best erroneous bordering on mendacious. Many of the facts adduced by Rushport it fails to recognise particularly in regards to the relationship between the Applicant and the Len Valley Practice.

8.1.1.2 It would also point out that the Len Valley Practice does in fact supply and dispense the repeat prescriptions and the associated medication from their Harrietsham branch surgery.

8.1.1.3 Apart from the above caveats the Applicant has no new evidence to adduce in this matter.

Conclusion

8.1.2 Having carefully read the responses to the appeals, it would say that NACAD 8 application is to be preferred as it is collocated with a medical practice unlike the competing application of Jacash and will offer genuine choice of pharmaceutical providers.

8.1.3 The practice are confident that the Applicant will at least mirror the surgeries opening hours and that they can enjoy a good working relationship. They are not reassured that that would be the case with Jacash. A good working 37

relationship with the owners of a pharmacy can only be beneficial for all patients accessing Pharmaceutical Services in Harrietsham.

8.1.4 It would say that on at least the balance of probabilities that only one grant of consent to join the Pharmaceutical List of NHS England should be granted at Harrietsham and that it should be given to the Applicant. It respectfully invites the Authority so to determine.

8.2 LEN VALLEY PRACTICE

8.2.1 With regards to the comments made about Len Valley Practice on behalf of Jacash Ltd it wishes to point out that, outside the current extraordinary Pandemic, patients have always routinely collected repeat and acute medication from Harrietsham surgery. Len Valley Practice also delivers to those unable to attend, as stated previously. Its service was rated as Good at its last CQC assessment. The window sign included in the Jacash response relates to the use of Harrietsham Surgery as a Covid vaccination hub for its Primary Care Network. Len Valley Practice started vaccinating in December but because of the uncertainty about vaccine delivery dates (a National problem) it did not wish to confuse patients with frequent changes of clinics. As above, these are extraordinary and exceptional times. Len Valley Practice continue to collect repeat medication requests delivered to Harrietsham and deliveries are organised to patients unable to collect their medication from its surgery at Lenham, a purely temporary and pragmatic arrangement in a health crisis. Len Valley Practice trusts that the committee will understand that this is not the norm.

8.2.2 With regards to the points raised about Covid-19 safety, it has invested and fitted Harrietsham surgery with ‘Virus Killer’ units which filter air, cleansing it of Corona Viruses with ultraviolet light. This filtration covers the area where patients collect their medication, as well as its consulting rooms. All patient- facing staff, including dispensers, wear PPE.

8.2.3 Len Valley Practice has known Mr Morley for many years and he is a trusted colleague. If the committee decides that a Pharmacy is necessary in Harrietsham then it feels that he is a Pharmacist with whom Len Valley Practice could have a good relationship. It notes that Jacash agrees that Len Valley Practice’s relationship with Jacash to date has been ‘fraught with difficulties’, it sees no reason to assume that new premises will improve this relationship. Investment in its premises at Harrietsham is already under review. The extra investment, to develop a Pharmacy on the land available at the existing dispensing surgery site, would, it feels, help us continue to offer a Good service to its patients in Harrietsham. However, Len Valley Practice is also keen to enlarge the existing dispensary, as part of its landlords proposed building upgrade, if it is allowed to continue to dispense to its Harrietsham patients.

8.2.4 The proposed Jacash site is not central to the village and would require crossing the busy A20 for the majority of local patients. To Len Valley Practice’s knowledge, there have been at least two fatalities crossing that stretch of the A20, since I first came to the practice, hence its concerns about safety. The road is also only likely to get busier with local housing development and Operation Stack periodically closing the M20 due to lorry congestion at Dover.

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OH ANNEX B

REF: SHA/23412 Arena Point Merrion Way APPEAL AGAINST NHS COMMISSIONING BOARD Leeds ("NHS ENGLAND") DECISION TO REFUSE AN LS2 8PA

APPLICATION BY JACASH LIMITED FOR INCLUSION IN Tel: 0203 928 2000 THE PHARMACEUTICAL LIST OFFERING Fax: 0207 821 0029 UNFORESEEN BENEFITS UNDER REGULATION 18 AT Email: [email protected] HARRIETSHAM, MAIDSTONE, KENT ME17 (BEST ESTIMATE)

1 The Application

By application dated 13 January 2020, Jacash Ltd (“the Applicant”) applied to NHS Commissioning Board (“NHS England”) for inclusion in the pharmaceutical list offering unforeseen benefits under Regulation 18 at Harrietsham, Maidstone, Kent ME17, and more specifically the area to the north and south of the A20 between Roebuck Business Park to the west and Northdown House (CET Infrastructure site) to the east and West Street. In support of the application it was stated:

In response to the question of if the application should be refused pursuant to Regulation 31, the Applicant stated:

1.1 No other pharmacy in the village so not applicable.

Information in support of the application

1.2 Harrietsham is a rural and industrial village and civil parish in the Maidstone District of Kent. Harrietsham is also considered to be a rural service centre and, after the Maidstone rural area, a focus of new development within the wider council area.

1.3 Rural services centres are focal points where improved infrastructure and the strategic location of new development will reduce the need to travel and will help to maintain and improve on the range of essential local services and facilities. It is important that the rural service centres remain sustainable settlements with the services and facilities necessary to support a growing population.

1.4 According to the United Kingdom Census 2001, it had a population of 1,504 which increased by over 30% to 2,113 at the 2011 Census. Continuing development means that the population is now closer to 2,400 and will increase further as housing developments which are onsite or permitted come to fruition.

1.5 The new developments will mean that Harrietsham is required to provide services to meet the needs of local residents and visitors and pharmacy is one of the services required, especially as a GP practice already operates within the village.

1.6 With no pharmacy in the village patients have no option other than to travel over 1 mile to Lenham or further to other villages and towns to access the full range of

pharmaceutical services. The Applicant in this case is also the nearest existing pharmaceutical service and they have recognised the growth in the area and wishes to provide pharmaceutical services that will meet the needs of the village as it expands.

1.7 The PNA does not identify the need for a pharmacy in Harrietsham and this application is therefore submitted under Regulation 18 as an unforeseen benefits application.

1.8 Given the not insignificant population of the area and requirement for patients to leave the village in order to receive basic advice from a pharmacist granting the application would secure better access to pharmaceutical services for the relevant population.

1.9 In addition, those who are resident in Harrietsham, have no reasonable choice of pharmaceutical provider. Whilst there are pharmacies located over 1 mile away, these cannot be considered as providing reasonable choice for those in Harrietsham.

1.10 In addition to providing dispensing services, the pharmacy would provide all other essential, advanced and enhanced services that are commissioned by NHS England or the local authority. Providing access to these services will be of significant benefit for patients, particularly those who may have difficulty in accessing other areas, such as the elderly, infirm disabled, or parents with young children (ie those who share a protected characteristic).

2 The Decision

NHS England considered and decided to refuse the application. The decision letter dated 22 September 2020 states:

2.1 NHS England has considered the above application and is writing to confirm that it has been refused. Please see the enclosed report for the full reasoning.

NHS Decision Report

THE APPLICATION

2.2 An application from the Applicant offering unforeseen benefits was received on 16 January 2020. The Applicant proposed to site the new pharmacy at the following best estimate address: Harrietsham, Maidstone, Kent

2.3 NHS England was now required to consider the application in accordance with Regulation 18 of the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013, as amended.

CONSIDERATION

2.4 NHS England considered the following:

2.4.1 The NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013, as amended.

2.4.2 The application form provided by the Applicant.

2.4.3 Map of the proposed location, local pharmacies and local GP surgeries. Several maps of the relevant area had been submitted as the original best estimate was not accepted by the Committee. The final map submitted included an area that was believed by the Applicant to be earmarked for redevelopment for retail units. The application had been submitted in 2018 and had been deferred under Regulation 18(2)(f) by virtue of Part 7 while a rurality review was undertaken. That application was subsequently withdrawn, and the current application was then submitted on 16th January 2020.

2.4.4 NHS England noted that it had previously approved the best estimate address for the application.

2.4.5 Site visit report.

2.5 This application was considered alongside that submitted by NACAD8, for Unforeseen Benefits, at Glebe House, Church Road, Harrietsham, Maidstone, Kent.

2.6 Representations, as made by the following interested parties:

2.7 Len Valley Practice:

2.7.1 “We would wish to comment on the merits of the two competing pharmacy applications and would comment as follows:

2.7.2 Premises

2.7.3 Len Valley Medical Practice, with our local knowledge believe we are reliably informed that there are no suitable business premises to accommodate a pharmacy within the area shown by Jacash. On the other hand, NACAD 8 has secured permission from ourselves to locate a pharmacy at Glebe Medical Centre in the event that the company is granted irrevocable consent to join the Pharmaceutical List of NHS England.

2.7.4 2. Opening Hours

2.7.5 NACAD 8 have warranted to the practice that they will at least mirror our opening hours.

2.7.6 3. Advanced and Enhanced Services

2.7.7 Jacash have listed several services not currently commissioned but state 'we intend to provide a number of services that are not currently commissioned and will seek to work with local GP practices to develop joint working on provision of non-commissioned services.' This has not been discussed with the practice and it is unlikely that we would support joint working as we are a dispensing practice.

2.7.8 4. Information in support of the application

2.7.9 Jacash suggests Harrietsham is a 'rural and industrial village in a civil parish'. We would dispute the adjective industrial. There is no factual evidence within the Jacash application to show how the local community is likely to grow or to identify any of the characteristics of the existing population/patient list at the practice. Jacash state that if their application is granted their pharmacy would provide the local community with a choice of pharmacy providers. As the nearest existing pharmacy is Saxon Warrior Pharmacy, in Lenham which is owned by the Applicant, this would mean both pharmacies were owned by the same provider i.e. effectively not a choice at all.

2.7.10 There is a reference to those who share protected characteristics - who 'may' have difficulty in accessing other pharmacy providers such as the elderly, infirm, disabled, or parents with young children. However, no effort has been made to define or quantify the needs of those with protected characteristics. We would say that Jacash's application therefore fails to meet the requirements of Regulation 18 of the Pharmaceutical Services Regulations.

2.7.11 In the NACAD 8 application, they have focussed on the specific needs of the population; the over 65's, unpaid carers, transport and access difficulties,

inadequacy of public transport, the impact on the age profile from new housing, the extent of long-term conditions within the community.

2.7.12 The Jacash application has not in any substantive way described how their proposed pharmacy would secure improvements for the Harrietsham community. We would say that Jacash's application therefore fails to meet the requirements of Regulation 18 of the Pharmaceutical Services Regulations

2.7.13 5. Working with the incumbent provider of Medical Services

2.7.14 NM the Sole Director of NACAD 8 has had a very good working relationship with Len Valley Medical Practice for several years and we anticipate an ongoing good working relationship for the clinical benefit of patients accessing Medical and Pharmaceutical Services at Glebe Medical Centre. The Medical Practice has unfortunately not enjoyed a constructive relationship with Jacash Limited and communications have been difficult. We have been given no advance notice by Jacash Limited of their intention to submit a Pharmaceutical Application at Harrietsham.

2.7.15 6. How the applicant intends to secure the unforeseen benefit(s)

2.7.16 We would say that in our opinion the application by NACAD 8 is significantly superior to that of the application by Jacash. We believe that NACAD 8's application will be to the benefit of our patients. We do not think that the application by Jacash will benefit our patients.

2.7.17 Conclusion

2.7.18 We would say that the Jacash application has failed to satisfy several of the requirements of Regulation 18 of the Pharmaceutical Services Regulations.

2.7.19 We would say that on least the balance of probabilities the application by Jacash has not adduced sufficient evidence to justify NHS England to determine a grant of consent to join the Pharmaceutical List of NHS England under the parameters of Regulation 18 of the Pharmaceutical Services Regulations 2013 as amended.

2.7.20 We would say that the application by NACAD 8 has satisfied all of the requirements of Regulation 18 of the Pharmaceutical Services Regulations. We would say that on least the balance of probabilities NACAD 8 application has adduced sufficient evidence to justify NHS England to determine a grant of consent to join the Pharmaceutical List of NHS England under the parameters of Regulation 18 of the Pharmaceutical Services Regulations 2013 as amended.”

2.8 Kent LPC:

2.8.1 “Whist we are assured that the area in question remains a controlled area following a recent rurality review we would like to know that when premises are secured they will be beneficial to all in the surrounding area, as patients have to currently travel to the surgery and then a pharmacy from a wide area. EPS however does make this less of an issue than previously. There has been significant housing being built in the area, and there continues to be more being built. We do believe that the population has increased significantly since the 2011 census and will continue to do so. The PNA has been delayed due to COVID-19 but we believe that this increase in population and the needs of the population in the Harrietsham area would lead to a need for pharmaceutical provision.”

2.9 Kent HWB:

2.9.1 “The current PNA is being reviewed and areas which have changed considerably since the last review are being assessed as a priority. It is generally felt that in villages such as Harrietsham where the population is increasing rapidly, such services such as a pharmacy sited in the middle of the village would be beneficial to the inhabitants. We have a few queries which may need to be addressed about this particular application.

2.9.2 There does not seem to be identified a proposed location for these premises. This needs to be confirmed before the application is considered. Ideally a location central to the village would be desired.

2.9.3 We understand that NHS England have recently carried out a rurality review and determined that this area is still within a controlled locality despite the increase in new housing in the area. NHS England do not appear to have identified how many patients there are registered for GMS services living within 1.6km of Harrietsham. If the number of patients affected is currently less than 2750, the area could be considered to be a “reserved location” although this may change if the population grows. There is a dispensing branch surgery of Len Valley Practice in Harrietsham which currently is able to dispense to all its patients in the Harrietsham area. If a pharmacy contract is granted within Harrietsham then there needs to be some discussion as whether the dispensing service will be prejudiced and how they will differentiate between pharmacy patients and dispensing patients.

2.9.4 It is important to realise that community pharmacies do not only dispense prescriptions but allow patients to self-care, obtaining pharmacy-only medicines over the counter instead of taking up valuable GP time. This is a priority of the local West Kent CCG who encourage their residents to normally buy medicines for common ailments and not to visit their GP. They even commission a local scheme (The West Kent Common Ailment Scheme) to help patients with this. Self-Care is also a national priority and all of the pharmacies in Kent are contracted to become a Healthy Living Pharmacy, which not only provides advice about medicines, but also acts as a Community Hub providing advice, support and signposting to the integrated services in both health and social care which encourage a healthy lifestyle. Any new contract granted should be expected to meet these requirements.”

2.10 NACAD8:

2.10.1 “We would wish to comment on the merits of the two competing pharmacy applications. We would say the following:

2.10.2 1. Location - Our best estimate for the location of our pharmacy is very clear whereas Jacash have submitted a map which shows a very vague area. In question 2 the location is described as ‘Harrietsham’ and ‘within the area on the attached map’. The guidance for completion of the application states ‘Best estimates are to be precise as possible.’ The map attached by Jacash does not meet this requirement.

2.10.3 2. Premises - Len Valley Medical Practice with their local knowledge have confirmed to me there are no suitable business premises to accommodate a pharmacy within the area shown by Jacash. On the other hand, NACAD 8 has secured permission from Len Valley Medical Practice to locate a pharmacy at Glebe Medical Centre in the event that the company is granted irrevocable consent to join the Pharmaceutical List of NHS England.

2.10.4 3. Opening Hours - The core hours shown by Jacash cover a range identical to ours except there is no closure i.e. 8.30am to 6.30pm Monday to Friday. Jacash have not explained why in their application their core hours exceed 40 hours. Jacash have also not explained how they will fill the requirements of

Working Hours Regulations to provide pharmaceutical cover for the statutory lunch break. Total proposed opening hours are exactly the same as ours.

2.10.5 4. Advanced and Enhanced Services - MUR’s included in the Jacash application. By the time a pharmacy is operational in Harrietsham (is granted), MURs will no longer be commissioned. The new Community Pharmacist Consultation Service (CPCS) is not mentioned. Jacash have listed several services not currently commissioned but state ‘we intend to provide a number of services that are not currently commissioned and will seek to work with local GP practices to develop joint working on provision of non-commissioned services.’ This is aspirational and should not be assumed to be deliverable. There is also an inference that any additional services will only be provided if supported by the GP practice.

2.10.6 5. Information in support of the application - Para 1 suggests Harrietsham is a ‘rural and industrial village in a civil parish’. We would dispute the adjective industrial. There is no factual evidence within the Jacash application to show how the local community is likely to grow or to identify any of the characteristics of the existing population/patient list at the practice. Jacash state that a pharmacy in Harrietsham would secure better access to pharmaceutical services for the relevant population. We agree! Jacash state that if their application is granted their pharmacy would provide the local community with a choice of pharmacy providers. As the nearest existing pharmacy is Saxon Warrior Pharmacy, in Lenham which is owned by the Applicant, this would mean both pharmacies were owned by the same provider i.e. effectively not a choice at all. There is a glib reference to those who share protected characteristics - who ‘may’ have difficulty in accessing other pharmacy providers such as the elderly, infirm, disabled, or parents with young children. However, no effort has been made to define or quantify the needs of those with protected characteristics as shown in our application. We would say that Jacash’s application therefore fails to meet the requirements of Regulation 18 of the Pharmaceutical Services Regulations. In our application we have focussed on the specific needs of the population; the over 65’s, unpaid carers, transport and access difficulties, inadequacy of public transport, the impact on the age profile from new housing, the extent of long-term conditions within the community. The Jacash application has not in any substantive way described how their proposed pharmacy would secure improvements for the Harrietsham community. We would say that Jacash’s application therefore fails to meet the requirements of Regulation 18 of the Pharmaceutical Services Regulations

2.10.7 6. Working with the incumbent provider of Medical Services - We have had a very good working relationship with Len Valley Medical Practice for several years and anticipate a good working relationship for the clinical benefit of patients accessing Medical and Pharmaceutical Services at Glebe Medical Centre. I believe I am reliably informed by that Medical Practice that unfortunately they do not enjoy a constructive relationship with Jacash Limited and communications have been difficult. They were given no advance notice by Jacash Limited of their intention to submit a Pharmaceutical Application at Harrietsham.

2.10.8 7. How the applicant intends to secure the unforeseen benefit(s) – The Applicant has simply stated that they intend to secure the unforeseen benefit(s) ‘by opening a pharmacy at the proposed location’. This is wholly inadequate and fails to provide PCSE with any evidence to show that the applicant has considered the specific needs of the community and how pharmacy services can be delivered to meet the identified needs. We have:

2.10.8.1 Shown how the delivery of essential services will benefit the community

2.10.8.2 Detailed opening hours and how we will always at least mirror those of the GP practice.

2.10.8.3 Safe parking arrangements

2.10.8.4 Benefits of Pharmacist intervention and the availability of a pharmacist prescriber

2.10.8.5 The specific benefits to the over 65’s as a group with protected characteristics including a Falls Prevention Service

2.10.8.6 Convenience and genuine choice in terms of pharmaceutical provision

2.10.8.7 The benefit of well targeted commissioned services such as CPCS

2.10.9 Conclusion - We would say that the Jacash application has failed to satisfy several of the requirements of Regulation 18 of the Pharmaceutical Services Regulations.

2.10.10 We would say that on least the balance of probabilities the Applicant has not adduced sufficient evidence to justify NHS England to determine a grant of consent to join the Pharmaceutical List of NHS England under the parameters of Regulation 18 of the Pharmaceutical Services Regulations 2013 as amended.

2.10.11 We respectfully invite the determining committee so to determine. We would say that our application has satisfied all of the requirements of Regulation 18 of the Pharmaceutical Services Regulations. We would say that on least the balance of probabilities our application has adduced sufficient evidence to justify NHS England to determine a grant of consent to join the Pharmaceutical List of NHS England under the parameters of Regulation 18 of the Pharmaceutical Services Regulations 2013 as amended.”

2.11 Rebuttal by Applicant:

2.11.1 “Health and Wellbeing Board - We note that the HWB agrees that granting this application would be beneficial to inhabitants and they state - The current PNA is being reviewed and areas which have changed considerably since the last review are being assessed as a priority. It is generally felt that in villages such as Harrietsham where the population is increasing rapidly, such services such as a pharmacy sited in the middle of the village would be beneficial to the inhabitants.

2.11.2 My client has identified a “best estimates” area that covers the middle of the village and where a number of properties suitable for a pharmacy have been identified. The best estimate location covers the main route through Harrietsham and would be visible to all those who live in, work in or pass through the village.

2.11.3 We note the comments made by the HWB re the prejudice test and similarly note that the Len Valley Practice has not claimed that granting the application would cause any prejudice to the services that they provide.

2.11.4 We note and agree with the HWB that it is important for the pharmacy to be able to provide residents (and visitors) with access to medicines for common ailments and to not have to visit their GP to do so. Similarly we agree with the HWB comments about the wider role of pharmacies in the community.

2.11.5 Len Valley Practice and NACAD 8 Ltd

2.11.6 My client notes that the reply from both parties is the same as they are essentially the same organisation using two legal entities. In respect of the points raised by both we reply as follows:

2.11.7 1. Location and Premises - My client has identified a number of suitable properties for the pharmacy in their best estimate area and the area has been accepted by NHS England as a best estimate. My client does not understand why the practice would claim that there are “no suitable business premises to accommodate a pharmacy” when the opposite is clearly true and even a brief site visit would confirm that there are a number of suitable premises within the best estimate area.

2.11.8 2. Opening Hours - Both Jacash Limited and Len Valley Practice have accepted that my client’s application will provide longer opening hours for patients. This is clearly an advantage for patients. Both the replies refer to “Working Hours Regulations” however no such Regulations exist. Both parties may be referring to the Working Time Directive, but again this is not clear as the Directive allows for workers to opt out and there is no such thing as a “statutory lunch break”. To be clear, my client will comply with all relevant regulations and directions and provide lawful access to pharmaceutical services across all the hours that they operate.

2.11.9 3. Advanced and Enhanced Services - My client will provide all services that can be commissioned either locally, via the local authority, CCG, or nationally. This will include the CPCS service and also the pandemic delivery service should it still be commissioned when the pharmacy opens. Mr Morley then writes - “There is also an inference that any additional services will only be provided if supported by the GP practice.” It is clear that such an inference should not be drawn and it was not implied in the application. My client has offered to work with the Len Valley practice to develop joint working on “non- commissioned services”. This would allow the practice and pharmacy to work together to provide services that are not commissioned by any party but which would benefit patients. My client would hope that the practice would wish to work collaboratively with any pharmacy for the benefit of patients, but it would be a matter for the practice to decide whether they wished to work collaboratively or not. Whilst the application from NACAD 8 lists services that they would propose to provide, many are no advanced or enhanced services and are therefore not relevant to the determination of these applications as the determination must consider pharmaceutical services rather than “other” services.

2.11.10 4. Information in Support of the Application - It is not clear why the practice or Mr Morley would take issue with describing Harrietsham as industrial when there is a large amount of industrial activity taking place there for a comparatively small village. The industrial estate is only one example of this and it is a description also used by Wikipedia. Our attached report also highlights the numerous industrial areas either within or close to the village.

2.11.11 In relation to choice the practice and Mr Morley say as follows - Jacash state that if their application is granted their pharmacy would provide the local community with a choice of pharmacy providers. As the nearest existing pharmacy is Saxon Warrior Pharmacy, in Lenham which is owned by the applicant, this would mean both pharmacies were owned by the same provider i.e. effectively not a choice at all. We do not agree with this characterisation. At present there is only a GP practice in Harrietsham which also dispenses to eligible patients. The practice wishes to set up a pharmacy which would be essentially owned by the surgery partners and would be located in the same building. We assume that the practice agrees that the current Saxon Warrior

Pharmacy which my client owns is located too far from the village to be of meaningful benefit to patients. Indeed that is why both applications have been submitted.

2.11.12 NACAD 8 Ltd and Len Valley practice want the pharmacy and the GP dispensary to be owned by the same people, operated by the same people and located in the same building. In contrast, my client is offering to provide a pharmacy which would be centrally located in the village, in separate ownership from the doctors and operated by different people.

2.11.13 There is a clear and undeniable advantage to the position offered by my client in terms of choice. As an example, during the current pandemic, the Len Valley practice closed to patients. As well as the practice closing, the dispensary also closed. Patients were told to go to pharmacies instead. My client does not criticise the practice for taking this action and it was similar to what happened across the country. However, almost every pharmacy stayed open during the pandemic (including my client’s existing pharmacy) and those that closed tended to be in shopping centres or airports. Having a separation between the practice and the pharmacy provides real choice for patients.

2.11.14 Almost all GP practices now see a much faster move to consultations taking place via video or telephone and allowing patients to avoid having to visit the practice premises. The NHS England is planning for its future pandemic response. Separating the location of pharmacy and GP services can be very beneficial in such a response. In Harrietsham there is only a need for one pharmacy and NHS England will be required to consider whether it is more appropriate to locate it away from the village centre, inside a GP practice where there is virtually nobody passing unless they are required to visit their GP, or at a separate and more high profile location within the centre of the village.

2.11.15 Mr Morley then describes my client’s application as “glib”. In other words “insincere or shallow”. This is a disappointing and unprofessional approach for Mr Morley to adopt and my client is grateful to the Len Valley Practice for removing this word from their copy of the letter. My client is sure that whomever NHS England chooses to operate a pharmacy will provide a high quality service to patients. In the event that NHS England decides that one application should be approved they will no doubt do so by reference to what is best for patients in terms of location and opening hours as it is clear that both Applicants wish to provide all commissioned services.

2.11.16 5. Working with the Incumbent Provider of Medical Services - My client is disappointed with the comments made by the practice in relation to their relationship with Saxon Warrior Pharmacy. My client has attempted to raise a number of issues with the practice which they believe would benefit patients and they do not believe that this is the correct forum to discuss those issues. We would invite the practice to commit to working constructively with all pharmacy providers to improve services for patients. In addition to the comments made in this letter my client has been focusing on providing more information that will help the committee make its decision in these linked cases and we are pleased to enclose the attached report which provides further details on the are for the committee’s consideration.

2.11.17 Kent LPC - We note that the LPC as well as the HWB also support the approval of a new pharmacy in Harrietsham. The LPC makes a valid point that patients do not need to attend their surgery as often as they used to and that the pharmacy “should be beneficial to all in the surrounding areas”. This further supports my client’s application over that of the doctors.

2.11.18 In summary it appears that all parties from the local doctors, pharmacy, LPC and HWB all agree that a new pharmacy is required in Harrietsham. It is

similarly clear that only one pharmacy is required. Further to the judgment of the Honourable Mr Justice Kay in R (on the Application of RUSHPORT ADVISORY LLP) v NATIONAL HEALTH SERVICE LITIGATIONAUTHORITY [2016], only one application should be approved as to grant both would lead to overprovision. NHS England will therefore need to decide between the two applications in the even that they agree with all the other parties that a pharmacy should be permitted to open in Harrietsham.”

2.12 All additional information, including location, access and distances of surrounding pharmacies and their opening times.

2.13 Department of Health Guidance – Regulations under the Health and Social Care Act 2012: Market Entry by means of Pharmaceutical Needs Assessments – Chapter 10.

2.14 NHS England decided it was not necessary to hold an oral hearing before determining the application.

2.15 MH provided the background to the application. The application is supported by Rushport Advisory LLP. The area of Harrietsham is almost a suburb of Maidstone, with considerable housing development over the past few years. The village does not have a formal centre, and not many shops in keeping with its village character.

Regulation 31 – Refusal: same or adjacent premises

2.16 NHS England noted that it was required to refuse an excepted application, if the two conditions under paragraph 31(2) applied. These conditions are –

2.16.1 A person on the pharmaceutical list (which may or may not be the applicant) is providing or has undertaken to provide pharmaceutical services (“the existing services”) from the premises to which the application relates, or adjacent premises; and

2.16.2 The NHSCB is satisfied that it is reasonable to treat the services that the applicant proposes to provide as part of the same service as the existing services (and so the premises to which the application relates and the existing listed chemist premises should be treated as the same site).

2.17 NHS England noted the Applicant’s comments with regard to why the application should not be refused pursuant to Regulation 31.

2.18 NHS England was satisfied that there was no other provider of pharmaceutical services at or adjacent to the proposed address and concluded that it was not required to refuse the application for the purpose of Regulation 31.

2.19 NHS England noted that, if the application was granted, the successful applicant would – in due course – have to notify NHS England of the precise location of its premises (in accordance with paragraph 31 of Schedule 2). Such notification would be invalid (and the applicant would not be able to commence provision of services) if the location then provided (had it been known now) have led to the application being refused under Regulation 31.

2.20 Having established that it did not have to refuse the application under Regulation 31 NHS England moved on to consider Regulations 36 & 37.

Regulations 36 & 37

changed, the Committee confirmed that it should remain a controlled locality within the meaning Regulations 36 of the 2013 Regulations.

2.23 [Regulation 40 quoted]

Regulation 40(1)

2.24 NHS England noted that there was no dispute between the parties that the best estimate location for premises where the applicant was seeking listing, was in a controlled locality.

Regulation 40(2)(b)

2.25 NHS England noted that the last decision regarding a pharmacy application in place was more than five years ago.

2.26 Therefore, NHS England did not need to refuse the application under Regulation 40

Regulation 41: Controlled locality – reserved location

2.27 Based on the conclusions above, NHS England went on to consider the application in light of the remainder part of Part 7 and, in particular, regulation 41 which reads:

2.28 [Regulation 41 quoted]

2.29 NHS England considered the issue of reserved location as Regulation 41(2) is mandatory as it requires NHS England to make a determination regarding reserved location status in circumstances such as these. NHS England noted that the number of individuals residing within 1.6km radius of the best estimate location on the date of the receipt of the application was 2,818, and as such more than 2,750 which is required for reserved location status according to Regulation 41(3)(a). NHS England noted that the population count would have to be re-done in the event that the application is granted.

2.30 NHS England found that the application was not for premises within a reserved location.

Regulation 18 –

2.31 NHS England noted that this was an application for “unforeseen benefits” and therefore was to be considered under the provisions of Regulation 18 which states:

2.31.1 [Regulation 18 quoted]

2.32 NHS England had previously decided there was no need to defer the application under Regulation 18(2)(c) to (f).

2.33 Will approving the application(s) secure improvements or better access to pharmaceutical services? (Reg 18(1)(a))

2.33.1 NHS England considered the provision of pharmaceutical services in the area of Harrietsham where currently there are dispensing services provided by the local GP surgery, but no pharmacy.

2.33.2 NHS England, therefore, found that Regulation 18(1)(a) was satisfied in that it was required to determine whether it was satisfied that granting the application or granting it in respect of only some of the services specified in it, would secure improvements, or better access, to pharmaceutical services, or pharmaceutical services of a specified type, in the area of the relevant HWB.

2.34 Were these improvements included in the PNA? (Reg 18(1)(b))

2.34.1 NHS England, having considered that Regulation 18(1)(a) was satisfied, went on to consider whether Regulation 18(1)(b) was satisfied i.e. whether the improvements or better access that would be secured if the application was granted were or was included in the PNA in accordance with paragraph 4 of Schedule 1 of the regulations.

2.34.2 NHS England considered the PNA prepared by Kent HWB published March 2018 and was conscious of the fact that this document provides an analysis of the situation as it was assessed at the date of its publication. However, NHS England was also mindful of the obligations under Regulation 6(2) on the body responsible for the PNA to make a revised assessment as soon as reasonably practicable (after identifying changes that have occurred that are relevant to the granting of applications) unless to do so appear to be disproportionate response to those changes. Where it appears disproportionate, the responsible body may, but is not obliged to, issue a Supplementary Statement under Regulation 6(3). Such a statement then forms part of the PNA. The Committee noted that no relevant Supplementary Statements had been issued since the publication of the PNA in April 2018.

2.34.3 Based on the information provided NHS England noted that the improvements or better access that the Applicant was claiming would be secured by its application were not included in the relevant PNA in accordance with paragraph 4 of schedule 1.

2.35 In order to be satisfied in accordance with regulation 18(1), NHS England had to have regards to those matters set out in Regulation 18(2). NHS England’s consideration of the issues is set out below:

2.36 Would granting the application cause significant detriment to the proper planning of the provision of pharmaceutical services in the HWB’s area? (Reg 18(2)(a)(i))

2.36.2 NHS England was of the view that a granting of the application would not cause significant detriment to the proper planning of the provision of pharmaceutical services in the HWB’s area

2.37 Would granting the application cause significant detriment to the arrangements for the provision of pharmaceutical services in the area? (Reg 18(2)(a)(ii))

2.37.2 NHS England was of the view that a granting of the application would not cause significant detriment to the arrangements for the provision of pharmaceutical services in the HWB’s area.

2.38 In the absence of any significant detriments as described in Regulations 18(2)(a), the Committee was not obliged to refuse the application and went on to consider Regulation 18(2)(b).

Reg 18(2)(b)(i) - Reasonable choice

2.39 NHS England noted that currently there is no pharmacy located within Harrietsham itself although the Glebe Medical Practice is a dispensing practice. However, the question of choice relates to choice with regards to obtaining pharmaceutical services in the area of the relevant HWB. NHS England therefore examined the choices currently available to patients within a reasonable travel distance of the best estimate location.

2.40 The nearest pharmacy to the proposed site would appear to be Saxon Warrior Pharmacy (3km distant), which is open for 40 hours per week. There are two other pharmacies located within 10km.

2.41 The Applicant proposed to provide pharmaceutical services for 50 core hours a week and a total of 54 opening hours per week.

2.42 NHS England noted that within the Harrietsham & Lenham ward a relatively high number of residents felt that their health was good or very good. The Number of households with 2+ car/vans was reasonable.

Local GPs: List size Postcode Minutes by Car/Train/Walk

The Glebe MC 9,423 ME17 1AP N/A

Len Valley 9,423 ME17 2QF 7min (3.7km)/13 Practice min/44min (3.5km)

The Orchard 3,463 ME17 3JY 11 min (8.4km) / Surgery 1hr28min / 1hr33min (7.5km)

Southways 6,699 ME17 3HT 15min (10.9km) / 1hr22min / 1hr57min (9.5km)

Local Core Dispensing Postcode Minutes by Car / Pharmacies Opening Stats (last Train / Walk Hours 3 months)

Saxon Warrior 09:00 – 17:00 21,491 ME17 2PG 4min (3km) / Pharmacy Mon-Fri 10min / 36,in (2.9km)

Paydens Ltd 09:00 -13:00, 48,157 ME14 4LX 10min (8.8km) / 14:00 – 18:00 17min / 1hr47min Mon-Fri (8.8km)

Spires Pharmacy 09:00 – 13:00, 7,700 ME15 8XW 13min (10.4km) / 14:00 – 18:00 32min / 2hr Mon – Fri, (9.9km)

09:00 – 13:00 Sat

Charing 09:00 – 12:30, 27,167 ME27 0AW 10min (9.6km) / Pharmacy 13:30 – 18:00 24min / 1hr52min Mon-Fri (9.2km)

2.43 NHS England were not aware of any complaints that had been received about the current level of services provided.

2.44 Therefore, when considering the criteria for reasonable choice in relation to physical access, and the size of the population, the services provided by a range of providers in Harrietsham as well as the GP Service provision, NHS England was of the view that there was already reasonable choice with regards to obtaining pharmaceutical services in the area of the relevant HWB. It was considered by NHS England that most of the population’s general needs would be sourced habitually from outside the village, e.g. in Maidstone or Ashford.

2.45 NHS England therefore found that granting the application, would not confer significant benefits on persons in the area.

Reg 18(2)(b)(ii) - Difficulty of Access (Protected Characteristics)

2.46 In considering Regulation 18(2)(b)(ii)) NHS England was aware that it was required to focus on people who share a protected characteristic requiring services that meet specific needs for pharmaceutical services that are difficult for them to access. NHS England was also aware of its obligations under the Equality Act 2010 which include considering the elimination of discrimination and advancement of equality between patients who share protected characteristics and those without such characteristics.

2.47 However, the Applicant had not presented any evidence to indicate that there were any persons with protected characteristics who are currently experiencing any difficulty accessing services. If there was a requirement in the area for particular services to address difficulties in accessing services that meet the specific needs of people with protected characteristics, either NHS England or the local Clinical Commissioning Group could commission such a service.

Reg 18(2)(b)(iii) - Providing an innovative approach to the delivery of pharmaceutical services

2.49 In considering Reg 18(2)(b)(iii) NHS England considered the desirability of innovative approaches to the delivery of pharmaceutical services. In doing so NHS England was expecting provision of services that were ‘over and above’ the standard delivery and range of pharmaceutical services that might be expected from all pharmacies under the NHS contract i.e. essential, advanced and enhanced services.

2.50 NHS England agreed that there are no innovative approaches to the delivery of pharmaceutical services in the application.

DECISION

2.51 NHS England concluded that it was not required to refuse the application under the provisions of Regulation 31.

2.53 NHS England determined that the application should be refused on the following basis:

2.53.1 In considering whether the granting of the application would confer significant benefits, NHS England determined that –

2.53.2 there is already a reasonable choice with regard to obtaining pharmaceutical services;

2.53.3 there is no evidence of people sharing a protected characteristic having difficulty in accessing pharmaceutical services; and

2.53.4 there is no evidence that innovative approaches would be taken with regard to the delivery of pharmaceutical services;

RIGHTS OF APPEAL

2.55 The application is refused so the Applicant has the right to appeal.

3 Site Visit Report

3.1 Site Visit to Harrietsham

Purpose

3.2 The purpose of the site visit was to determine whether any changes were required to the current rurality determination of the area of Harrietsham.

3.3 The assessment comprised two members (TSSB and VSJ) of the NHS England and NHS Improvement – South East Region PSRC visiting Harrietsham on the morning of Friday 9 August 2019.

Location

3.4 Harrietsham is in the North Downs, lies 7 miles east of Maidstone and Wikipedia cites it as a ‘rural and industrial village’.

Access

3.9 https://bustimes.org/services/10x-ashford-charing-lenham-harrietsham-maidstone

Route

3.13 At the Bellway site, Bluebell Walk, there was no access at it was very much in development. The site access was gated off with clear signs stating the area was not accessible.

3.14 Next visited was the relatively new Co-op store on the junction of Southfields Way and Ashford Road. This has an ATM, parking is immediately in front of the shop including 2 disabled bays and is open 7 days a week. The Premier Convenience store just opposite on West St is also open daily. There is a very small M&S shop in the BP petrol station at the outskirts of Harrietsham.

3.15 Following Southfields Way down its course, it is clear that this area has been tens of recent new build houses. Using Rightmove Sold data is suggests that these houses were released from the end of 2016.

3.16 www.rightmove.co.uk/house- prices/detail.html?country=england&locationIdentified=POSTCODE%5E4589163&se archLocation=ME17+1GE&columnToSort=ADDRESS&referrer=listChangeCriteria

3.18 TSSB and VSJ noted the Business Centre advertising vacant plots, the signs to the Village Hall, the Kingdom Hall of Jehovah’s Witnesses and Rectory Care Home.

Recent new builds 15

3.19 Harrietsham is markedly a location for new build developments. There are several pockets of new residential areas throughout the village, both north and south of the A20.

3.21 Picture 2: Bluebell Walk construction Site (see 23402 Appendix A)

3.22 Picture 3: Bluebell Walk Site Plan (see 23402 Appendix A)

3.23 Picture 4: Bluebell Walk Launch website (see 23402 Appendix A)

3.25 Picture 5: Chantry Green Main access and Show Office (see 23402 Appendix A)

3.26 Picture 6: Chantry Green Armistice Way (see 23402 Appendix A)

3.27 Picture 7: Chantry Green Site Plan (see 23402 Appendix A)

3.29 Picture 8: The Southfield Way new build and Co-op (see 23402 Appendix A)

3.30 Please see below the completed Co-op store and please note the convenience store’s yellow and purple logo in the background centre.

3.31 Picture 9: The Co-op, Harrietsham (see 23402 Appendix A)

Findings

3.32 The overall impression is that Harrietsham was surrounded by green fields and with considerable distance to neighbouring town and villages.

Recommendation

3.36 Despite its recent but still limited housing stock increase, the village’s facilities and amenities have not followed suit. Although the population has grown, Harrietsham retains the character and limited infrastructure of a village.

3.37 Following the evidence from the site visit, the recommendation is that Harrietsham retains its rural status though this should be subject to regular review.

4 The Appeal

In a letter dated 20 October 2020 addressed to NHS Resolution, the Applicant’s representative Rushport Advisory LLP appealed against NHS England's decision. The grounds of appeal are:

4.1 NHS Resolution will note that parts of this letter of appeal repeat matters that were raised in response to the consultation comments received on the Applicant’s application. There is however a significant amount of additional information that has been provided with this appeal and the accompanying Appeal Report (entitled ‘Pharmacy Needs Report’) and the Applicant asks that the Committee considers all these matters in coming to a determination.

NHS England decision

4.2 The decision minutes repeat much of the information provided by parties in respect of this application but provides only limited reasoning for the conclusions and decision reached.

4.3 The following parts of the decision are noteworthy;

4.3.1 “Reg 18(2)(b)(i) – Reasonable choice

NHS England noted that currently there is no pharmacy located within Harrietsham itself although the Glebe Medical Practice is a dispensing practice. However, the question of choice relates to choice with regards to obtaining pharmaceutical services in the area of the relevant HWB. NHS England therefore examined choices currently available to patients within a reasonable travel distance of the best estimate location.

The nearest pharmacy to the proposed site would appear to be Saxon Warrior Pharmacy (3km distant), which is open for 40 hours per week. There are two other pharmacies located within 10km.

The Applicant proposed to provide pharmaceutical services for 50 core hours and a total of 54 opening hours per week.

NHS England noted that within the Harrietsham & Lenham ward a relatively high number of residents felt that their health was good or very good. The Number of households with 2+ car/vans was reasonable.

NHS England were not aware of any complaints that had been received about the current level of services provided.

Therefore, when considering the criteria for reasonable choice in relation to physical access, and the size of the population, the services provided by a range of providers in Harrietsham as well as the GP Service provision, NHS England was of the view that there was already reasonable choice with regards to obtaining pharmaceutical services in the area of the relevant HWB. It was considered by NHS England that most of the population’s general needs would be sourced habitually from outside the village, e.g. in Maidstone or Ashford.

NHS England therefore found that granting the application, would not confer significant benefits on persons in the area.” 17

4.4 NHS Resolution will note that page 13 of the decision report confirms that the population within 1.6km of the application site and registered with a GP practice is 2,818 and that the area is therefore not “reserved”. This count in and of itself shows that there is a not insignificant population within the village.

4.5 To simply claim that because patients access services in places such as Maidstone or Ashford, which are many miles away, that they should also be forced to access pharmacies elsewhere, simply ignores patient needs and the legal test. There is no consideration of whether such a requirement would be reasonable (which it is not), or whether access to pharmaceutical services would be improved by granting the application (which it clearly would).

4.6 Similarly, to focus on those who have access to cars or who consider their health to be good or very good is irrational. Those with the greatest need and highest demand for pharmaceutical services will be those who do not fall into these categories, yet they receive no consideration from NHS England at all.

4.7 The decision also states;

4.7.1 “Reg 18(2)(b)(ii) – Difficulty of Access (Protected Characteristics)

In considering Regulation 18(2)(b)(ii) NHS England was aware that it was required to focus on people who share a protected characteristic requiring services that meet specific needs for pharmaceutical services that are difficult for them to access. NHS England was also aware of its obligations under the Equality Act 2010 which include considering the elimination of discrimination and advancement of equality between patients who share protected characteristics and those without such characteristic.

However, the Applicant had not presented any evidence to indicate that there were any persons with protected characteristics who are currently experiencing any difficulty accessing services. If there was a requirement in the area for particular services to address difficulties in accessing services that meet the specific needs of people with protected characteristics, either NHS England or the local Clinical Commissioning Group could commission such a service.”

4.8 It is wholly wrong for NHS England to claim that the Applicant “has not present any evidence to indicate that there were any persons with protected characteristics who are currently experiencing any difficulty accessing services”.

4.9 NHS England were sent a copy of the attached Pharmacy Needs Report (which also forms the basis for this appeal). NHS England has not referenced a single page or comment from the entirety of the 33 page report. The report sets out why access to existing services is difficult for those who share a protected characteristic and NHS England has simply ignored the content of the report. It must also be remembered that all patients share multiple protected characteristics and the requirement in the Regulations is to consider the needs of all patients and to include in that consideration groups which may be small or in the minority.

Letters of support

4.10 To further demonstrate that those living in and around Harrietsham who share protected characteristics would derive significant benefit from granting the application and that access to pharmaceutical services is difficult for many patients, the Applicant provides the attached letters of support for the Committee’s attention. These letters focus on particular needs for pharmaceutical services which are difficult to access and some also note the growth in the area.

Health and Wellbeing Board

4.11 The Applicant notes that the HWB agrees that granting this application to inhabitants and they state;

4.11.1 “The current PNA is being reviewed and areas which have changed considerably since the last review are being assessed as a priority. It is generally felt that in villages such as Harrietsham where the population is increasing rapidly, such services such as a pharmacy sited in the middle of the village would be beneficial to the inhabitants.”

4.12 The Applicant has now secured premises in which it will be able to open the pharmacy (see attached letter and plans) [Appendix A]. The Applicant’s premises will be just off the main road through the village, in comparison to the premises proposed by NACAD 8 Limited which are not central or visible.

4.13 The Applicant notes the comments made by the HWB re the prejudice test and similarly note that the Len Valley Practice has not claimed that granting the application would cause any prejudice to the services that they provide.

4.14 The Applicant notes and agrees with the HWB that it is important for the pharmacy to be able to provide residents (and visitors) with access to medicines for common ailments and to not have to visit their GP to do so. Similarly the Applicant agrees with the HWB comments about the wider role of pharmacies in the community.

4.15 It is very unusual for the HWB to support the granting of a new pharmacy when it has not already been identified as a need within the relevant PNA. As such, the statement from the HWB should have been afforded more weight in the decision making process, but it is not referenced at all by NHS England (other than listing the statement in the report).

4.16 Whilst it may appear slightly unkind to make this suggestion, it would appear that NHS England was aware that they had competing application from both the local provider of medical services and the local provider of pharmaceutical services who have both identified the requirement for a pharmacy in Harrietsham and where that requirement is accepted by the LPC and the Health and Wellbeing Board – but have chosen not to grapple with the issue of which application should be preferred by simply refusing both applications and passing the responsibility to NHS Resolution.

Primary Care Appeals – Guidance for Parties

4.17 The Applicant asks the Committee to note that the PCA Guidance Note for Parties Involved in Pharmacy Appeals dated 16 December 2019 states;

4.17.1 “Where the parties agree on a relevant fact, NHS Resolution will proceed on the basis of the fact having been proven for the purposes of the appeal.

Where a party has provided evidence of a relevant fact which has not been disputed, NHS Resolution will proceed on the basis of that fact also having been proven.”

4.18 As no party has disputed the evidence provided NHS Resolution must proceed on the basis that the facts in evidence are proven. In fact, all the parties agree that a new pharmacy should be permitted to open in Harrietsham.

4.19 The HWB has also accepted that there will be a need for a pharmacy in the area.

4.20 Whilst the application from NACAD8 Ltd is a competing application (and is effectively by the local GP practice) they also agree that access to existing pharmacies is poor and that a pharmacy is required in the village of Harrietsham.

4.21 The Applicant asks the Committee to note that the requirement for the Committee to proceed on the basis of facts being proven where they have not been challenged still applies in this case. It does not cease to apply simply because parties have chosen not to comment. In other words, the Applicant should not be held to a higher standard of proof simply because there is no material objection.

Len Valley Practice and NACAD 8 Ltd

4.22 The Applicant notes that the reply from both parties is the same as they are essentially the same organisation using two legal entities.

4.23 In respect of the points raised by both the Applicant replies as follows;

4.24 Location and Premises

4.24.1 The Applicant has now secured premises in which it will open the pharmacy if the application is approved. The Applicant attaches confirmation of this as well as a map which shows the location of the premises.

4.25 Opening Hours

4.25.1 Both the Applicant and Len Valley Practice have accepted that the Applicant’s application will provide longer opening hours for patients. This is clearly an advantage for patients.

4.25.2 Both the replies refer to “Working Hours Regulations” however no such Regulations exist. Both parties may be referring to the Working Time Directive, but again this is not clear as the Directive allows for workers to opt out and there is no such thing as a “statutory lunch break”.

4.25.3 To be clear, the Applicant will comply with all relevant regulations and directions and provide lawful access to pharmaceutical services across all the hours that they operate.

4.26 Advanced and Enhanced Services

4.26.1 The Applicant will provide all services that can be commissioned either locally, via the local authority, CCG, or nationally. This will include the CPCS service and also the pandemic delivery service should it still be commissioned when the pharmacy opens.

4.26.2 NACAD8 Limited then writes;

4.26.2.1 “There is also an inference that any additional services will only be provided if supported by the GP Practice.”

4.26.3 It is clear that such an inference should not be drawn and it was not implied in the application. The Applicant has offered to work with the Len Valley Practice to develop joint working on “non-commissioned services”. This would allow the practice and pharmacy to work together to provide services that are not commissioned by any party but would benefit patients. The Applicant would hope that the practice would wish to work collaboratively with any pharmacy for the benefit of patients, but it would be a matter for the practice to decide whether they wished to work collaboratively or not.

4.26.4 Whilst the application from NACAD 8 lists services that they would propose to provide, many are not advanced or enhanced services and are therefore not relevant to the determination of these applications as the determination must consider pharmaceutical services rather than these “other” services.

4.27 Information in Support of the Application

4.27.1 It is not clear why the practice or NACAD 8 Limited would take issue with describing Harrietsham as industrial when there is a large amount of industrial activity taking place there for a comparatively small village. The industrial estate is only one example of this and it is a description also used by Wikipedia. The attached report also highlights the numerous industrial areas either within or close to the village.

4.27.2 In relation to choice the practice and NACAD 8 Ltd say as follows;

4.27.2.1 “The Applicant states that if their application is granted their pharmacy would provide the local community with a choice of pharmacy providers. As the nearest existing pharmacy is Saxon Warrior Pharmacy, in Lenham which is owned by the Applicant, this would mean that both pharmacies were owned by the same provider i.e. effectively not a choice at all.”

4.27.3 The Applicant does not agree with this characterisation. At present there is only a GP practice in Harrietsham. The practice wishes to set up a pharmacy which would be essentially owned by the surgery partners and would be located in the same building.

4.27.4 The Applicant assumes that the practice agrees that the current Saxon Warrior Pharmacy which the Applicant owns is located too far from the village to be of meaningful benefit to patients. Indeed that is why both applications have been submitted.

4.27.5 NACAD 8 Ltd and Len Valley practice want the pharmacy and the GP surgery to effectively be owned by the same people, operated by the same people and located in the same building. In contrast, the Applicant is offering to provider a pharmacy which would be centrally located in the village, in a separate ownership from the doctors and operated by different people.

4.27.6 It is important in this case to differentiate between the Len Valley Practice (which operates multiple sites) and The Glebe Medical Centre which is the GP surgery located in Harrietsham and which is operated by the Len Valley Practice.

4.27.7 The Glebe Medical Centre operates only as a collection point for repeat prescriptions dispensed at Len Valley Practice in Lenahm and there is no facility for dispensing at the Glebe Medical Centre in Harrietsham.

4.27.8 In the Applicant’s initial submissions, it mistakenly said that the Glebe Medical Centre dispensed prescriptions to patients, ie it provided a pharmaceutical service. However, it is now clear that this is not the case. There are no pharmaceutical services of any description available in Harrietsham. [emphasis included by the Applicant]

4.27.9 There is a clear and undeniable advantage to the position offered by the Applicant in terms of choice. As an example, during the current pandemic, the Len Valley practice effectively closed to patients. As well as the practice closing, the dispensary required patients to go to a window to collect medication (in Lenham rather than Harrietsham), with no option to have their prescriptions transferred to pharmacies that remained open. The Applicant does not criticise the practice for closing their doors to patients as it was similar to what happened across the country. However, almost every pharmacy stayed open during the pandemic (including the Applicant’s existing pharmacy) and those that closed tended to be in shopping centres or airports. Having a

separation between the practice and the pharmacy provides real choice for patients.

4.27.10 Almost all GP practices now see a much faster move to consultations taking place via video or telephone and allowing patients to avoid having to visit the practice premises. NHS England is planning for its future pandemic response. Separating the location of the pharmacy and GP services can be very beneficial in such a response. In Harrietsham there is only a need for one pharmacy and NHS England will be required to consider whether it is more appropriate to locate it away from the village centre, inside a GP practice where this is virtually nobody passing unless they are required to visit their GP, or at a separate and more high profile location within the centre of the village.

4.27.11 NACAD 8 Ltd then describes the Applicant’s application as “glib”. In other words ‘insincere or shallow’.

4.27.12 This is a disappointing and unprofessional approach for NACAD 8 Ltd to adopt and the Applicant is grateful to the Len Valley Practice for removing this word from their copy of the letter. The Applicant is sure whomever the Committee choses to operate a pharmacy will provide a high quality service to patients. In the event that the Committee decides that one application should be approved they will no doubt do so by reference to what is best for patients in terms of location and opening hours as it is clear that both Applicants wish to provide all commissioned services.

4.28 Working with the Incumbent Provider of Medical Services

4.28.1 The Applicant is disappointed with the comments made by the practice in relation to their relationship with Saxon Warrior Pharmacy. The Applicant has attempted to raise a number of issues with the practice which it believes would benefit patients and they do not believe that this is the current forum to discuss those issues. The Applicant would invite the practice to commit to working constructively with all pharmacy providers to improve services for patients.

4.28.2 In addition to the comments made in this letter the Applicant has been focusing on providing more information that will help the Committee make its decision in these linked cases and it is pleased to enclose the attached report which provides further details on the area for the Committees consideration.

Kent LPC

4.29 The Applicant notes that the LPC as well as the HWB also support the approval of a new pharmacy in Harrietsham. The LPC makes a valid point that patients do not need to attend their surgery as often as they used to and that the pharmacy “should be beneficial to all in the surrounding areas”. This further supports the Applicant’s application over that of the doctors.

4.30 In summary it appears that all parties from the local doctors, pharmacy, LPC and HWB all agree that a new pharmacy is required in Harrietsham.

Preference in Competing Applications

4.31 It is similarly clear that only one pharmacy is required. Further to the judgement of the Honourable Mr Justice Kay in R (on the Application of RUSHPORT ADVISORY LLP) v NATIONAL HEALTH SERVICE LITIGATION AUTHORITY [2016], only one application should be approved as to grant both would lead to overprovision. The Committee will therefore need to decide between the two applications in the event that they agree with all the other parties that a pharmacy should be permitted to open in Harrietsham.

4.32 In the Applicant’s submission, its application should be preferred because;

4.32.1 The Applicant has now secured premises in which they will be able to open the pharmacy (see attached letter).

4.32.2 The Applicant’s premises will be on the main road through the village, in comparison to the premises proposed by NACAD 8 Limited which are not central or visible from the main road.

4.32.3 The Applicant’s application provides reasonable choice.

4.32.4 The Applicant is offering longer core opening hours than are offered by NACAD 8 Limited and can therefore guarantee access to pharmaceutical services to patients for more hours every week.

Pharmacy Needs Report

4.33 An application has been submitted for a new pharmacy for premises at Harrietsham, Maidstone. This application site at the heart of the settlement and will be located in the area of Church Road/Ashford Road.

4.34 This report is submitted on behalf of the Applicant. The Applicants are extremely well placed to understand the needs of Harrietsham given they operate the nearest pharmacy to Harrietsham in Lenham. It is also the principal pharmacy used by patients that visit the Len Valley Practice which is the main surgery in Lenham but also the parent surgery for the Glebe Medical Centre which is a branch surgery for Len Valley Practice in Harrietsham.

4.35 The Applicant is aware that there is a second application for a new pharmacy in Harrietsham submitted by NACAD8 Limited (“NACAD8”) for a pharmacy at the Glebe Medical Centre. This application is confirmation that the two main healthcare providers in the immediate and wider area, being the GPs and the pharmacist, have each identified a need for a new pharmacy in Harrietsham. No party has opposed these applications. Given the scale of population growth discussed below this is unsurprising.

Statutory Considerations

4.36 The statutory tests are set out under “The National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013” (“the Regulations”). In particular the application should be assessed under Regulation 18.

4.37 The first test is whether an application for Harrietsham has been considered under the Pharmaceutical Needs Assessment for Kent (the “PNA”). A review of the PNA confirms that no mention of Harrietsham is made in the Kent PNA (or indeed separate Appendix for West Kent Clinical Commissioning Group Area which is a locality within the PNA) and no aspect of the proposal is countenanced in the PNA. As such the application is an ‘unforeseen’ application and Regulation 18 applies to its assessment. The Applicant discusses the PNA further below.

4.38 Other aspects of the Regulations are Regulation 18(2)(a)(i) whether significant detriment to proper planning in respect of the provision of pharmaceutical services in the area of the relevant HWB would occur and Regulation 18(2)(a)(ii) whether significant detriment to the arrangements the NHSCB has in place for the provision of pharmaceutical services in that area would occur. There is no reason to suggest that proper planning of pharmacy provision in the HWB would be impacted should the application be allowed. The fact that the Applicant owns the nearest pharmacy to the application site and the nearest GP surgery also identifies the need for a pharmacy is evidence of need and as a direct consequence it is not likely that any pharmacy will experience significant detriment should this application be allowed.

4.39 The other aspects that an applicant can ground their application on includes Regulation 18(2)(b)(ii) and (iii) being that a proposal will support the needs of people who share a protected characteristic and innovate approaches are being taken. Innovation is not to be relied upon in this case. Protected characteristic is justification for this application as shown later, but it can be noted that the proposal is in an area which has a high level of elderly people and growing numbers of young people who are groups with protected characteristics.

4.40 The Regulations have been in place for 7 years and are well understood. They have been distilled into the central issue of whether a proposal will provide better access to pharmaceutical services (Regulation 18(1)(a)) and whether there is reasonable choice of pharmaceutical services (Regulation 18(2)(b)(i)). The regulations provide no guidance as to what is “better access” or “reasonable choice”, such matters are determined by the facts of the case.

4.41 Better access and reasonable choice cannot be met by arbitrary figures provided in documents such as the PNA of being to drive to a pharmacy within a radius of 1 miles or a drive time of 2-3 minutes. Such an arbitrary approach does not reflect the characteristics of an area where both the nearest pharmacy and the nearest GP have separately and independently identified a need for the proposal. This must be a significant factor in favour of a new contract.

Harrietsham Village

4.42 Harrietsham is a village on the north site of the M20 and located about 8 miles east of Maidstone. It is about 11 miles northwest of Ashford. It is over 2 miles west of Lenham accessed via the A20 Ashford Road.

4.43 Harrietsham has developed at the intersection of the Ashford Road and the Ashford International-Maidstone East-London Victoria southwestern railway line. Harrietsham has a railway station location at Station Road. Harrietsham is a Rural Service Centre designated in the Maidstone Borough Local Plan (Adopted October 2017). As such it is stated in the Local Plan para 4.25 that:-

4.43.1 It is important that these villages are allowed to continue to serve their local area by retaining vital services thereby reducing the need to travel. Some development at these locations provides for a choice of deliverable housing locations and supports the role of the sural service centres. Appropriately scaled employment opportunities will also be allowed, building on and expanding provision in these locations. [Emphasis Added].

4.44 The Local Plan para 4.78 notes that:-

4.44.1 Harrietsham provides a range of key services. Provision of, and access to, schools and community facilities in the village are adequate but will require improvement with any increase in population. The village has good public transport connections to Maidstone and other retail and employment centres. There is a local aspiration for replacement almshouses to support the local elderly population and for additional retail and paly facilities, which are limited. [Emphasis Added]

4.45 The Local Plan notes that Rural Service Centres (such as Harrietsham) is the second most sustainable settlements in the settlement hierarchy to accommodate growth. In Harrietsham the Council will support:

4.45.1 Approximately 242 new dwellings to be delivered across three separate sites (planning permission has actually been granted for 259 dwellings);

4.45.2 Two existing employment sites are designated Economic Development Areas to protected and maintain employment opportunities in the locality;

4.45.3 Infrastructure improvements;

4.45.4 Provision of a one form entry expansion at either Lenham or Harrietsham Primary School;

4.45.5 Provision of 2.8ha of open space;

4.45.6 Improvements to health infrastructure including improvements at Glebe Medical Centre;

4.45.7 Loss of local shops and community facilities will be resisted and new retail development and community services will be supported to meet local needs.

4.46 The map below shows the areas of housing growth being located along the southern edge of Harrietsham and the two areas of employment one beside the railway station and one south of Ashford Road. About 40% (100) of the new houses are likely to be affordable homes. [Appendix A]

4.47 Harrietsham has a linear form extending over a mile west of the M20. The main commercial activity in the town is located along the Ashford Road. The Ashford Road is a two lane carriageway either side of the village and widens into a 4 lanes in the centre of the village where it meets West Street and Southfields Way.

4.48 In the centre of the village the Roebuck Business Park is the location of a number of employers and further along is a new Co-op supermarket, close to an Indian restaurant, Premier Local Shop, the Roebuck public house and Lee Davy Caravans. Harrietsham also has 3 places of worship and a village hall providing a number of community facilities. The new Co-op extends to about 300 sq m. A Co-op of this size and location would probably attract about 5,000 – 6,000 customer transactions per week.

4.49 Just north of the Ashford Road is the Harrietsham Village Hall, the Glebe Medical, Harrietsham Cricket Club, St John the Baptist Church. Northwest of the town is Harrietsham Church of England Primary School for about 150 pupils. Also on the north edge of Harrietsham beside the railway station is Harrietsham Industrial Estate. [Appendix A]

Wider Area

4.50 Lenham village is further east. This is another designated Rural Service Centre confirmed in the Maidstone Local Plan. Lenham has the key services and community facilities expected of a Rural Service Centre which primary school, nursery and secondary school. There is a need for significant new housing in Lenham to accommodate young people. Lenham has an immediate allocation for 155 new houses (albeit as shown below 364 have been allowed) but after 2021 Lenham has been identified as a location for the delivery of approximately 1,000 new homes. While there is a clear policy requirement that will prevent Harrietsham and Lenham from coalescing, it is shown below that the main areas for proposed growth of Lenham are to the west and south.

4.51 Lenham has a thriving town square with local pubs and restaurants, shops, library, take aways, Community Centre, social club, fire station, Cricket club, bowling club, schools, florists, post office, estate agents, accountants, Co-op supermarket and pharmacy.

Implications of Growth in Lenham

4.52 It is not possible to consider the demand in Harrietsham without acknowledging the growth and demands that will come forward in Lenham. The only grounds that could arise to refuse a new contract in Harrietsham is because Lenham meets the needs of Harrietsham. However as shown below, Lenham cannot be expected to meet the needs of Harrietsham. The Lenham Neighbourhood Plan shows that despite allocating 25

sites for 155 new houses actually 364 new houses have been approved. This is an immediate demand that is capable of coming forward now with no need to wait until 2021.

4.53 In addition to this with the requirement to provide a further 100 new houses as a strategic allocation for this part of Kent, Lenham needs to accommodate 1364 new homes by 2031. As the Plan below highlights this will double the size of the village.

4.53.1 “The base date for Lenham Neighbourhood Plan is October 2017. As at October 2017 there were a number of committed development sites within the Parish as follows:

Old Goods Yard (appeal) 65 dwellings

Old Ham Lane, Lenham (appeal) 82 dwellings

Tanyard Farm North (allocation) 145 dwellings

The Paddock (allocation and permission) 23 dwellings

Tanyard Farm South (permission) 6 dwellings

Maidstone Road (under construction) 23 dwellings

Ridings Farm (permission) 1 dwelling

Parapet Field (permission) 3 dwellings

Glebe Gardens (permission) 10 dwellings

Lenham Heath Forstal (permission) 6 dwellings

Committed sites 364 dwellings

4.53.2 Lenham will, therefore, need to accommodate some 1364 additional dwellings by 2031. This level of growth will approximately double the size of the village.”

4.54 The ability of the village centre to accommodate the demands of these extra people is of concern as the Neighbourhood Plan below confirms that the parking in the Square and its accessibility at peak times is already under strain.

4.54.1 “Lenham Square

4.54.2 Lenham is a local service centre with a range of jobs in distribution, retail and other services.

4.54.3 Lenham Square is the focus of retail and service activity in the village. The Plan supports the retention and improvement of Lenham Square as the prime focus for economic activity.

4.54.4 Problems associated with parking in and around the Square and accessibility through it at peak times have been raised repeatedly during the public consultation exercises conducted as part of the Plan. These issues are considered in the published Transportation Assessment 2019. There are issues with local flooding of properties within the Square. A scheme of environmental enhancement of the Square could usefully examine these issues in more detail.”

4.55 The Neighbourhood Plan also acknowledges that the GP facilities will need to be upgraded. While this is not specifically referencing pharmacy services, it is clear that the ability of patients to access a pharmacy is also a matter that needs to be addressed.

4.55.1 “Improvements to Local Doctors’ Facilities

West Kent CCG is currently undertaking a service review with Len Valley Practice. The growth proposed at both Harrietsham and Lenham will necessitate additional local health facilities which are currently provided by the Len Valley Practice. This is intended to be funded by strategic CIL.”

The Proposal

4.56 Details of the proposal are set out in the application forms. It can be noted that the proposal will open 8.30am to 6.30pm Monday to Friday and from 9.00am to 1.00pm on Saturday. It will operate 50 core hours and 54 opening hours.

4.57 It is intended to provide all commissioned services and ensure pharmacists employed are accredited to provide all commissioned services. The premises will also be accredited. In addition it is proposed to provide a number of services that are not currently being commissioned and to work with the local GP services to develop joint working on the provision of non-commissioned services.

4.58 The Applicant has now identified premises to open the pharmacy and these will be just off the main road through the village.

Comparison with the GP Application

4.59 The proposal will open longer core hours than the NACAD 8 application and as the Committee will be aware, it is only core hours that can be relied upon. The GP application will have the same total proposed opening hours (54 hours across the week), but the core opening hours for the NACAD 8 application are 40 and NACAD 8 would be permitted to make this change by simply notifying NHS England and giving 3 months notice, whereas the Applicant is committing to these hours.

4.60 It is of interest to note that the practice (who are essentially behind the NACAD 8 application) do not provide a service at their dispensary (in Lenham) at the weekend, but appear to believe that a pharmacy service is required at the weekend in Harrietsham, yet have only included those hours as supplementary.

4.61 The doctors’ application (NACAD 8 Ltd) suggests that pharmaceutical services are required from 12.30pm to 2pm Monday to Friday. However, only supplementary hours have been offered compared to core hours from the Applicant. Again, if the NACAD 8 Ltd application were to be approved NHS England would be required to agree a notification to reduce the opening hours from NACAD 8 to their core opening hours only and allow lunchtime closing, whereas the Applicant cannot do this. It is of interest to note that the Glebe Surgery closes from 1pm to 3.30pm most weekdays (according to their NHS entry https://www.nhs.uk/services/gp-surgery/the-glebe-medical- centre/G82093001) yet the doctors believe that the pharmacy should be open then, but do not commit to opening time using core hours.

4.62 In relation to choice the practice and NACAD 8 say as follows;

4.62.1 The Applicant state that if their application is granted their pharmacy would provide the local community with a choice of pharmacy providers. As the nearest pharmacy is Saxon Warrior Pharmacy, in Lenham which is owned by the Applicant, this would mean both pharmacies were owned by the same provider i.e. effectively not a choice at all.

4.63 The Applicant does not agree with this characterisation. At present there is only a GP practice in Harrietsham and this surgery does not dispense to any patients and serves only as a collection point for medication that is dispensed at the other practice surgery in Lenham. The practice wishes to set up a pharmacy which would be essentially owned by the surgery partners and would be located in the same building.

4.64 The Applicant assumes that the practice agrees that the current Saxon Warrior Pharmacy which the Applicant owns is located too far from the village to be of meaningful benefit to patients. Indeed that is why both applications have been submitted.

4.65 NACAD 8 Ltd and Len Valley practice want the pharmacy and the surgery to be owned by the same people, operated by the same people and located in the same building. In contrast, the Applicant is offering to provide a pharmacy which would a pharmacy [sic] which would be centrally located in the village, in separate ownership from the doctors and operated by different people.

4.66 There is a clear and undeniable advantage to the position offered by the Applicant in terms of choice. As an example, during the current pandemic, the Len Valley practice effectively closed to patients. As well as the practice closing, the dispensary required patients to go to a window to collect medication (in Lenham rather than Harrietsham), with no option to have their prescriptions transferred to pharmacies that remained open. The Applicant does not criticise the practice for closing their doors to patients as it was similar to what happened across the country. However, almost every pharmacy stayed open during the pandemic (including the Applicant’s existing pharmacy) and those that closed tended to be in shopping centres or airports. Having a separation between the practice and the pharmacy provides real choice for patients.

4.67 Almost all GP practices now see a much faster move to consultations taking place via video or telephone and allowing patients to avoid having to visit the practice premises. NHS England is planning for its future pandemic response. Separating the location of pharmacy and GP services can be very beneficial in such a response. In Harrietsham there is only a need for one pharmacy and NHS England will be required to consider whether it is more appropriate to locate it away from the village centre, inside a GP practice where there is virtually nobody passing unless they are required to visit their GP, or at a separate and more high profile location within the centre of the village.

4.68 There is therefore a clear benefit to patients in approving the Applicant’s application over the NACAD 8 application.

Healthcare Provision in the Area

4.69 There are no pharmacies in the immediate area of Harrietsham or its Parish.

4.70 Glebe Medical Centre (a branch surgery), Church Road is located in Harrietsham. It opens 8:30 to 18:00 Monday to Friday and is closed Saturday and Sunday. This is a branch surgery for the Lea Valley Practice which is located at Groom Way, Lenham about 2.3 miles (3.68km) east of the proposal site. The main practice opens slightly later than the Glebe, staying open to 18:30 Monday to Friday and closing Saturday and Sunday.

4.71 In Lenham there is one pharmacy, Saxon Warrior Pharmacy, The Square, Lenham. This is the only pharmacy servicing the two villages and their wider rural area.

4.72 Lenham Valley Practice has about 9435 registered patients, and according to the GP application it has seen an increase of 20% in registered patients in the last 5 years. That equates to an increase in registered patients of about 1850. Given the scale of population in the villages it is clear that the surgery is catering for many rural residents not classed as part of the village or indeed the wider parish. The practice catchment must therefore be extensive.

4.73 In the last 12 months the surgery has prescribed an average of 22,000 items a month. Approximately 66% of these items are dispensed by the practice and almost all the remainder are dispensed by the Saxon Warrior Pharmacy.

4.74 The Saxon Warrior Pharmacy is dispensing on average 7345 items per month from 3026 forms with 13 MURs, 19 NMS and 3% EPS take up. The very low level of EPS is notable here with patients being forced to collect paper prescriptions because the local practice has not moved to electronic prescribing in the same way that has been seen across England where EPS regularly accounts for 70% of prescriptions.

The PNA

4.75 The Kent PNA comprises an overview report and subdivides the HWB area in to seven separate localities co-terminous with the seven Clinical Commissioning Group area (CCGs). Specific to the area of Harrietsham is the West Kent PNA.

4.76 As set out above, there is nothing in the PNA that discusses the need for a new pharmacy in Harrietsham and as such it is clear that this application is unforeseen and is compliant with the Regulations.

4.77 The PNA sets out the ratio of pharmacies per 100,00 people. It can be seen below that the England average is 23 pharmacies per 100,00 people, the West Kent area has only 19 pharmacies per 100,000 people. It is well below the average as a result.

4.77.1 Number of pharmaceutical service providers

Ratio of number of service provider sites per 100,000 population (excluding appliance contractors)

Locality Number of Practice Ratio/100,000 service provider population population sites

NHS Ashford 25 131,959 19 CCG

NHS 48 220,550 21 Canterbury and Coastal CCG

NHS Dartford, 60 266,075 22 Gravesham and Swanley CCG

NHS South Kent 48 204,570 23 Coast CCG

NHS Swale 28 111,860 25 CCG

NHS Thanet 32 145,377 22 CCG

NHS West Kent 93 488,377 19 CCG

Kent 334 1,570,448 21

England - - 23

The England average is 23, although this is not necessarily a good marker as it does not take the size of the pharmacy into account.

4.78 The PNA notes that while some surgeries in West Kent provide dispensing service, surgeries must always give patients the choice of either obtaining their medicines through the GP dispensary or being allowed to take their prescription to a community pharmacy. In Harrietsham such an offer is mere tokenism as there is no local pharmacy. The PNA confirms that there are no dispensing services listed as being provided on a Saturday or Sunday from dispensary services in the area.

4.79 The PNA notes that “Like most of Kent, considerable new housing is expected to be built in the West Kent area over the next 20 years… There are proposed new dwellings in the A20 corridor towards London… The services in these areas are currently provided by dispensing surgeries but the areas will need to be reassessed in the future as to whether the landscape has changed from rural to urban”. As such the PNA recognises the potential housing growth of 1000 new houses in Lenham, however it is silent on the growth in Harrietsham.

4.80 Maps accompanying the PNA show the 1.6km distance from Saxon Warrior pharmacy in Lenham. It confirms there is no pharmacy in Harrietsham, and that the Glebe Medical Centre is a dispensing Surgery. [Appendix A]

4.81 The map below shows Harrietsham as a rural town [see Appendix A]

4.82 There is nothing in the PNA that predicts this proposal and as such the proposal is unforeseen. However, as can be seen from the consultation responses, the Health and Wellbeing Board now favours having a pharmacy in Harrietsham.

4.83 It is notable that whilst the current PNA does not identify a need for a pharmacy in Harrietsham, the Health and Wellbeing Board were consulted on this application and have supported the opening of a pharmacy in Harrietsham as they recognise the significant growth in demand in the area.

Proximity & Accessibility of Existing Pharmacies

4.84 The only pharmacy that people in Harrietsham have any realistic accessibility to is Saxon Warrior, Lenham. This is over 2 miles away from Harrietsham (4 mile return walk). To walk this distance would take over 40 minutes (1 hour 20 minutes return walk). As such it is well beyond walking distance. The road between Harrietsham and Lenham is a busy A class road. It has a narrow footpath along its northside and it is most unlikely any patients would walk between the two villages. It is notable that on reaching Lenham there is only a dropped kerb. There is no pedestrian lights that can used to stop traffic and allow pedestrians to cross. [Appendix A]

4.85 The countryside between the two villages is protected under planning policy and as such the two villages will never become one and will always be kept as separate and distinct villages. There is no prospect therefore of the pedestrian accessibility ever being improved.

4.86 The car journey between the two towns would be same route as those walking. The village centre of Lenham has some communal parking, but there is no dedicated parking at the Saxon Warrior pharmacy. As highlighted above in the Lenham Neighbourhood Plan the Square is subject to flooding and parking and accessibility issues at peak hours. Requiring patients to drive outside their village to access a pharmacy is not a sustainable pattern of service provision. The fact that the Applicant is the same pharmacist in Lenham and has identified a clear need for a pharmacy in 30

Harrietsham is evidence that patients are being disadvantaged by being required to make the 4 mile round trip to Saxon Warrior pharmacy. The fact that a pharmacist is willing to operate in separate villages is confirmation that there is a demand and that the economic and business case supports this proposal.

4.87 Buses do run between the two villages. The 10X bus runs every 2 hours and the T11 runs once a day between Lenham and Lunford Park Tesco. It does not cater for patients to travel from Harrietsham to Lenham and back.

4.88 As such it is clear that this rural area has challenges for patients living in Harrietsham from accessing a pharmacy. The closest pharmacy in Lenham is too far to walk, will take at least two hours on public transport and will require those people with a car to drive outside the village to another village with parking and access issues in order to visit to access a pharmacy.

4.89 Given the foregoing, it is not surprising that both the local pharmacist and the local doctors have found Lenham inaccessible to the population of Harrietsham and have applied for a new pharmacy.

4.90 The only realistic option for patients is to use a car, but Harrietsham has grown significantly and is not “inward looking” for many of its services and facilities. Regulation 18 requires the decision maker to consider whether granting the application would secure better access to pharmaceutical services and in this case it clearly would.

4.91 Whilst the NHS England decision makes reference to patients accessing towns such as Ashford or Canterbury to use pharmacy services there, this is of little benefit to patients and is an unreasonable expectation.

4.92 Whether travelling by public transport or a car a patient would be undertaking a journey each way of approximately 30 to 40 minutes to access a pharmacy in Ashford and over 1 hour each way to access a pharmacy in Canterbury. Maidstone is approximately 20 minutes each way by car at quiet times of the day and over 8 miles from Harrietsham. These are significant and often costly journeys which are completely unnecessary and impose additional hardship on patients from both a time and cost perspective.

4.93 It is similarly clear that despite the claims of NHS England that patients will use pharmaceutical services in these towns, they in fact do not. Almost none of the prescriptions dispensed by the GP practice in Harrietsham end up being dispensed in Canterbury, Maidstone or Ashford. It is therefore an undisputable fact that patients do not see these locations as meeting their needs in terms of pharmaceutical services and it would be wrong to consider the position otherwise without evidence to support such a finding.

Matters Relevant to Need

Locally Provided Services

4.94 Refusal of this application will leave the entire growing population of Harrietsham without a pharmacy. It is a key concern of the Council that the Rural Service Centre of Harrietsham is a success and provide services for the local population. As part of a Local Plan the Council are encouraging new shops and services in Harrietsham. Provision of services such as a pharmacy will be a major boost for the area and the local population.

4.95 A local pharmacy can have a significant positive impact on community spirit and community identify. It provides a local meeting place for people to stop and meet their neighbours.

4.96 It is contrary to the aims of good planning and sustainable living to require the entire population of a village like Harrietsham to travel unnecessarily to a neighbouring

community to use their local services in order to obtain pharmacy services. Such an approach undermines the viability of the local shops in the village and increases the reliance of Harrietsham people on Lenham. This undermines the sense of community spirit in Harrietsham. In planning terms there are no good grounds to require the population of Harrietsham to leave their community to travel elsewhere for a pharmacy.

4.97 On the contrary, good planning would actively encourage a pharmacy in Harrietsham as it would maintain the services in the Rural Service Centre, support the needs of the local community, make access to a pharmacy easier and more sustainable encouraging people to walk to local shops, and combining a visit to the pharmacy as part of their day to day activity. It would give people that visit the local branch GP surgery a pharmacy close to their home without needing to make additional journeys to more distant pharmacies.

4.98 Given the cross-cutting nature of the NHS Regulations with national policy in terms of retailing, services, sustainability and seeking to improve access and give reasonable choice to people to a pharmacy, it must follow that planning policy encourage a pharmacy on these grounds, it would be wholly consistent for the NHS to accept this principle also.

Benefit of Locally Accessible Healthcare in Harrietsham

4.99 The Department for Health has the objective of pharmacies providing a wider range of services and to have a stronger role in the local community. It would encourage the provision of NHS services from a pharmacy to complement peoples current lifestyles and needs, where prevention of medical conditions can be achieved and where people can become educated in medical conditions so that they are better engaged in taking care of their own health needs and well-being.

4.100 With the closest pharmacy located outside the Harrietsham, and a 4 mile return trip away for many people living in this area, a material consideration is the benefits of having a pharmacy in Harrietsham. The fact that Harrietsham already has a branch surgery illustrates that there is a clear objective evidence of the need for additional healthcare in this area.

4.101 The provision of a pharmacy will support and boost the health care services in Harrietsham and provide a second locally accessible healthcare service with products and services for self-care that residents and people resorting to the area to visit the shops and community services and schools will be able to benefit from without the need to trouble the local Glebe Medical Surgery.

4.102 A pharmacy can provide a private consultation room and provide immediate access to a pharmacist who can help diagnose health conditions, prescribe medication and sign post patients to GP and other health services. It is a fundamental aspect of the health services provided throughout the UK. It is the frontline of health care and has the clear benefit of relieving pressure on GPs.

4.103 Being located in an area of increasing young population and with an elderly population a pharmacy will be of fundamental importance in achieving early intervention in patient conditions. A new pharmacy in a central and more visible location that the GP surgery will encourage people to call in with the pharmacist rather than delay seeking treatment because existing pharmacies are too far away and not easily accessible and are outside the daily travel patterns of the population. The very fact that this proposal is in the heart of the community means for many people, a pharmacy will be located as part of their daily patterns of movement.

4.104 The Harrietsham railway station attracts about 100,000 people entering or exiting the station annually (just under 2,000 a week). The main access road to the station is Ashford Road. The pharmacy will be in close proximity for people going to and from work on the train.

Accessibility on Foot

4.105 In order to discuss accessibility on foot objectively, it is important to understand what an acceptable walking distance is. Two documents are of guidance. The “Manual for Streets” (produced by the Communities and Local Government and Department for Transport) advises (para 4.41) that ‘Walkable neighbourhoods are typically characterised by having a range of facilities within 10 minutes (up to 800m) walking distance of residential area which residents may access comfortably on foot’. The Institution of Highways & Transportation provides “Guidelines or Providing for Journeys on Foot”. It states (para 3.30) that ‘Approximately 80% of walk journeys and walk stages in urban areas are less than one mile. The average length of a walk journey is one kilometres (0.6 miles). This differs little by age or sex and has remained constant since 1975/6.’ It suggests that an acceptable walking distance in an area such as the Harrietsham would be 800m, though 400m would be desirable and the preferred maximum would be 1200m.

4.106 With both guidelines identifying 800m to be acceptable it is a reasonable position to adopted 800m/10 minute walk as a guide for this report. Based on this guidance it can be noted that if a new pharmacy were to be located in the centre of Harrietsham this would mean it is accessible for anyone in the village to walk to. The converse is the case for the Saxon Warrior Pharmacy in Lenham wherein it is well beyond the walking distance guidelines outlined above.

Population of Harrietsham

4.107 The population of the urban area of Harrietsham in 2011 was 1442. However, perhaps a more realistic population profile is for the Parish of Harrietsham which includes the rural areas north and south had a 2011 population of 2113.

Population Growth since 2011

4.108 Taking into account the fact that since 2011 there has been planning permission granted for development in Harrietsham at Horwood Way (circa 80-100 dwellings), south of Ashford Road (circa 144 dwellings) and Church Road (circa 96 dwellings) there would be about 360 new dwellings in the area with a population increase of about 850. This will lift the Parish Population to about circa 3,000.

4.109 Added to this planning permission has been granted for additional housing at Mayfield Nursery (49 dwellings now complete). These will take the population to circa 3,100.

4.110 It is material to note that just northwest of Harrietsham is a mobile home park where about 40 mobile homes are provided. This could add a further 80 peple to the population that look to Harrietsham for their needs.

4.111 In additions regard should also be had to the attraction of Harriethsam for people coming to work in the two industrial estates.

4.112 It can be noted that Lenham’s population in 2011 was 2197 (in 968 households) and its parish population was 3,370 (in 1424 households). With the need to provide 1364 new dwellings in Lenham the parish population will double adding 3,410 people to the 3,370 parish residents and will give Lenham a parish population of 6,780.

4.113 It is unreasonable to expect the single pharmacy in Lenham to meet the needs of a population of 3,370 in Lenham, growing to 6,790 and for it to also meet the ongoing growth demands of the 3,000 people that live in Harrietsham. This would mean the Saxon Warrior Pharmacy will be catering for the needs of almost 10,000 people. This is significantly above (i.e. more than double) the England average of 1 pharmacy per 4,318 people. The scale of growth in this area indicates the need for a second pharmacy based purely on the pro rata population levels. Of course there are additional accessibility and choice matters that also support the case for the Harrietsham

pharmacy. This is discussed further below, but Saxon Warrior Pharmacy is saying that another pharmacy is required in Harrietsham.

Characteristics of the Population

4.114 The only available data on the characteristics of the population of Harrietsham is from the 2011 Census. While not ideal it can be used to give an indication of the characteristic of the population.

4.115 Focusing on the parish area around the proposal site the table below shows that 20% of the people in the area are aged over 65. These people will benefit from having a pharmacy in Harrietsham and are more likely to have difficulty accessing existing services. It is notable that 18.9% of the population of Harrietsham is under 16. As such 40% of the population would also be in these cohorts that have highest demand for pharmaceutical services.

Age structure

Persons

Harrietsham Parish

Count %

All usual residents 2,113 100.00

Age 0 to 4 125 5.9

Age 5 to 7 72 3.4

Age 8 to 9 43 2.0

Age 10 to 14 137 6.5

Age 15 30 1.4

Age 16 to 17 49 2.3

Age 18 to 19 43 2.0

Age 20 to 24 81 3.8

Age 25 to 29 70 3.3

Age 30 to 44 430 20.4

Age 45 to 59 434 20.5

Age 60 to 64 174 8.2

Age 65 to 74 243 11.5

Age 75 to 84 129 6.1

Age 85 to 89 31 1.5

Age 90 and over 22 1.0

Mean Age 42.5

Median Age 44

These figures are missing. Source ONS – 2011 Census

4.116 The table below confirms that 7.8% of households have no access to a car. During the day there would be a further 292 households where the car has been driven to work. That equates to almost 20% of the population.

Car or van availability

Households

Harrietsham Parish

Count %

All households 824 100.0

No cars or vans in 64 7.8 household

1 car or van in 792 35.4 household

2 cars or vans in 326 39.8 household

3 cars or vans in 94 11.4 household

4 or more cars or 46 5.6 vans in household

Sum of all cars or 1,432 vans in the area

These figures are missing. Source: ONS – 2011 Census

4.117 The table below shows that 16.9% of residents in Harrietsham Parish have their day to day activities limited by ill health. These people will derive significant benefits from having a local pharmacy.

Health and provision of unpaid Care

Persons

Harrietsham Parish

Count %

All usual residents 2,113 100.0

Day-to-day 165 7.8 activities limited a lot

Day-to-day 192 9.1 activities limited a little

Day-to-day 1,756 83.1 activities not limited

Day-to-day 75 3.5 activities limited a lot: Age 16 to 64

Day-to-day 83 3.9 activities limited a little: Age 16 to 64

Day-to-day 1,123 53.1 activities not limited: Age 16 to 64

Very good health 1,021 48.3

Good health 692 32.7

Fair health 300 14.2

Bad health 76 3.6

Very bad health 24 1.1

Provides no 1,892 89.5 unpaid care

Provides 1 to 19 141 6.7 hours unpaid care a week

Provides 20 to 49 28 1.3 hours unpaid care a week

Provides 50 or 52 2.5 more hours unpaid care a week

Source: ONS – 2011 Census

4.118 Affordable housing is a key policy for the Council in the Local Plan. The development of the 360 new homes would equate to about 144 affordable homes in the Parish. These will be added to other key groups such as those residents in the mobile home village (typically elderly retired residents) and the generally elderly population of the village.

4.119 In summary, Harrietsham is an area of established elderly people, however, the development of new homes is likely to have increased the family population people with young children, many of whom will be living in affordable homes.

Reasonable Choice

4.120 It seems obvious, but the fact there is a GP surgery in Harrietsham shows in itself the need to provide health services in Harrietsham, in addition to the existence of the surgery in Lenham. This is because people in Harrietsham need to opportunity to have reasonable access to their GP within their own town. There are similar duplication of services where Harrietsham has its own shops and services and places of worship and indeed its own train station without the need to visit Lenham. Harrietsham is designed to be self-contained settlement that supports and meets the need of its local people. It is recognised as being of the same scale and nature by the Council when it is classed both Harrietsham and Lenham as Rural Service Centres. There is no requirement to visit Lenham for groceries, work, services or to visit the pub or catch the train. It is clear that that same choice and reasonable provision of access to services should be extended to having access pharmaceutical services in Harrietsham.

4.121 In relation to choice the practice and NACAD 8 Ltd say as follows;

4.121.1 The Applicant states that if their application is granted their pharmacy would provide the community with a choice of pharmacy providers. As the nearest pharmacy is Saxon Warrior Pharmacy, in Lenham which is owned by the Applicant, this would mean both pharmacies were owned by the same provider i.e. effectively not a choice at all.

4.122 The Applicant does not agree with this characterisation. At present there is only a GP practice in Harrietsham. The practice wishes to set up a pharmacy which would be essentially owned by the surgery partners and would be located in the same building.

4.123 The Applicant assumes that the practice agrees that the current Saxon Warrior Pharmacy which the Applicant owns is located too far from the village to be of meaningful benefit to patients. Indeed that is why both applications have been submitted.

4.124 NACAD 8 Ltd and Len Valley practice want to the pharmacy and surgery to be owned by the same people, operated by the same people and located in the same building. In contrast, the Applicant is offering to provide a pharmacy which would be centrally located in the village, in separate ownership from the doctors and operated by different people.

4.125 Almost all GP practices now see a much faster move to consultations taking place via video or telephone and allowing patients to avoid having to visit the practice premises. NHS England is planning for its future pandemic response. Separating the location of pharmacy and GP services can be very beneficial in such a response. In Harrietsham there is only a need for one pharmacy and NHS England will be required to consider whether it is more appropriate to locate it away from the village centre, inside a GP practice where there is virtually nobody passing unless they are required to visit the GP, or at a separate and more high profile location within the centre of the village.

4.126 There is therefore a clear benefit in approving the Applicant’s application over the NACAD 8 Ltd application.

4.127 The proposal will provide reasonable choice for patients and indeed parity of services with Lenham which is plainly required given the recent scale of growth in the village.

Opening Hours

4.128 The proposal will be open between 8.30 am and 6.30pm and will be well placed to meet workers travelling by car via the motorway to work and returning home and also for workers commuting by train. Many workers will be unable to visit their GP on their way home (it closes at 6.00pm) and having a pharmacist on their way home will be a significant benefit. Similarly as the proposal is open during lunch break hours, the

workers in Harrietsham will be able to call the pharmacist should they take unwell during their lunch. This is an important distinguishing feature when compared to the GPs application for a pharmacy. As the pharmacy will be open on Saturday’s it will provide residents of Harrietsham with access to health care even when the GP surgery is closed. This is another important benefit.

4.129 As stated earlier under the PNA, while there are benefits of a co-located pharmacy, there are benefits for a pharmacy that is centrally located in a village where it is within the daily travel patterns of the population. The proposal will be close to parents travelling to collect children at school. Also in terms of its location, with the main population growth taking place south of Harrietsham, the proposal will be more accessible to new residents in the new housing areas.

Protected Characteristics

4.130 The proposal will cater for people of protected characteristics, namely those people of a particular age, disability and as well as expectant mothers and mothers with very young children.

4.131 As shown above the population of Harrietsham has population groups of elderly and young people both of which are groups with protected characteristics. The provision of pharmacy services in this area ensures the needs and rights of these groups are protected.

Need for a new pharmacy

4.132 The need for a new pharmacy arises because:

4.132.1 Harrietsham is an important Rural Service Centre and the Council would encourage the enhancement of services in the Harrietsham which would include the provision of a pharmacy;

4.132.2 The application is made by the nearest pharmacist which is illustrative of a clear need for a new contract. If there was no need the existing pharmacist would not seek to open a second pharmacy that might otherwise undermine their current service;

4.132.3 Added to this the GP surgery has a simultaneous application for a pharmacy. The fact that the two main health service providers in the area see the need for a new pharmacy is a significant factor in this case;

4.132.4 The area of Harrietsham has no pharmacy at present;

4.132.5 Harrietsham is growing in population terms and has seen the development of three large housing sites in recent years and the opening of a new Co-op supermarket. Just outside the town is a new M&S shop. These shops cater for the busy traffic travelling along the Ashford Road and through Harrietsham and workers in the area. A pharmacy in close proximity to the Ashford Road in Harrietsham will provide these workers and these travellers with a choice of pharmacy. At present those travelling north have no access to a pharmacy before they drive onto the M20. At present workers have to double back on their journey to visit Lenham;

4.132.6 Harrietsham attracts people to work and shop from the surrounding areas;

4.132.7 Harrietsham is also a location for the local rural population will resort to in order to access the train to commute to work;

4.132.8 There is a need to provide healthcare in Harrietsham on Saturday and the proposal will provide this; 38

4.132.9 There is a need to provide a pharmacy that is accessible to local peple and workers in Harrietsham during their lunch hour and the proposal will offer this;

4.132.10 It is not possible to consider Harrietsham and not include consideration of the fact that Lenham will double in size in the next 10 years. Any decision that suggests that people in Harrietsham can continue to be serviced by pharmaceutical services in Lenham ignores the independent views of the local Parish Council of Lenham that shows Lenham Square is under pressure in terms of car parking and the town will experience even more pressure with the development of 1300 new homes;

4.132.11 A number of residents in the area either elderly, live in affordable homes, have young children or have a low car ownership. All these characteristics support the need for a new pharmacy;

4.132.12 The area suffers from poor public transport accessibility;

4.132.13 The PNA does not foresee this proposal;

4.132.14 This area of Kent has below the England average of pharmacies per 100,000 population. The scale of population in the area with the growth projected in Lenham would support two pharmacies based of average population figures;

4.132.15 The fact that there are many services in Harrietsham that are also viable in Lenham shows that there is a clear service gap with a pharmacy being the obvious local service not being provided in Harrietsham at present.

4.132.16 There are no other pharmacies that are reasonably accessible to the population of Harreitsham;

4.132.17 There are no other pharmacies that offer the population of Harrietsham a choice of pharmaceutical services;

4.132.18 There are groups that share protected characteristics that will benefit from this proposal.

4.133 To content that the 3,000 residents of Harrietsham have reasonable access to a pharmacy in Lenham is doing nothing short of taking an overly optimistic view of this area. It would pay no attention to the requirements of proximity that are inherent in the concept of reasonable choice and better access.

4.134 The need to provide choice to the residents is equally clear.

4.135 The opportunity to satisfy that need is matched by the accessibility of the application site in the heart of the Rural Service Centre of Harrietsham which is the hub of this part of rural Kent. The better accessibility to, and choice of, pharmacy services that a pharmacy located at Harrietsham will provide is unquestionable.

Conclusion

4.136 Harrietsham does not have a reasonable choice of pharmacy services and is clearly in need of better access to pharmacy services. Following a critical assessment of the circumstances of Harrietsham the Applicant contends that the application is an unforeseen proposal that will satisfy the requirements of Regulation 18.

Visit report to parties together with the appeal and provided parties the opportunity to make representations on NHS England’s Site Visit report, including the Applicant.

6 Summary of Representations

This is a summary of representations received on the appeal.

6.1 LEN VALLEY PRACTICE

6.1.2 Len Valley Practice would say the following in response to both appeals:

6.1.3 Rushport on behalf of the Applicant Jacash Ltd in its appeal have stated that:

6.1.3.2 Rushport go on to state that ‘NACAD 8 Limited is a competing application is effectively made by a local GP practice’.

6.1.3.3 These statements and others elsewhere in Jacash Ltd’s appeal are at best erroneous for a number of reasons.

6.1.3.3.1 A provider of Medical Services could not make a Pharmaceutical Application.

6.1.3.3.2 The partners of Len Valley Practice are neither shareholders nor directors of either applicant.

6.1.3.3.3 A search of Companies House on 13 November 2020 showed that the sole director and shareholder of NACAD 8 is Mr N Morley and that in the past the only other stakeholder was a pharmacist Mr C Bakes.

6.1.3.3.4 Len Valley Practice have not identified a need for a pharmacy in Harrietsham but expressed an opinion when consulted that on the balance of probabilities it might be beneficial in its response to the 45-day consultations.

6.1.3.3.5 There is no contractual agreement between the partners with NACAD 8 to purchase the equity from Mr Morley if their application was to be successful.

6.1.6 Len Valley Practice do not support the application by Jacash Limited, the local pharmacy provider. Len Valley Practice have had an unfortunate relationship with Jacash Ltd. Jacash Ltd has not shared its development plans with Len Valley Practice or offered to work with LVP ‘to develop joint working on non- commission services’ in relation to this project. Indeed, attempts to collaborate in the past have been largely unsuccessful. For example, Saxon Warrior Pharmacy has refused to work with Len Valley Practice on its recall system for patients on repeat medication, a non-commissioned service. There is an open invitation to SWP to attend weekly clinical meetings at LVP but the only attendance that it can recall was one visit to gather information about the introduction of Primary Care Networks, when they were first introduced.

6.1.9 Jacash Ltd make some unfortunate comments about its practice and its appeal. Len Valley Practice would reassure NHS Resolution that Len Valley Practice certainly did not close during the pandemic, it continued to offer medical services during the normal contractual working hours. In common with general practices up-and-down the country it switched to a system of telephone triage with reduced face-to-face consultations, to reduce the risk of contracting and spreading coronavirus during the pandemic. Len Valley Practice were also affected by staff having to isolate and shield. To maintain a safe service at a very challenging time it reluctantly temporarily withdrew the bulk of its services to the Lenham site. Len Valley Practice were also mindful that the Harrietsham Surgery may be required as a backup site should it have to close the Lenham site due to contamination. Len Valley Practice reopened the Harrietsham surgery as soon as it was able. In the meantime, the practice organised increased deliveries for housebound patients and those having difficulty accessing the Lenham site. The practice funds a delivery van driven by volunteer drivers to deliver medication to patients struggling to attend the premises. Len Valley Practice have funded this service for many years and will continue to do so. It is sure that the committee will appreciate the last few months have been exceptional and that they are not a template for post- Pandemic services.

6.1.15 The practice agrees that if a pharmacy application is to be granted only one should be and that it should be given to NACAD 8.

Conclusion

6.1.20 Len Valley Practice confirms its willingness to attend or participate in an Oral Hearing whether physical or virtual if constituted by the Authority.

6.2 NACAD 8 LTD

6.2.1 On behalf of NACAD 8 it would say the following in response to the appeal by Rushport Advisory LLP on behalf of Jacash Ltd.

6.2.2 In respects of its appeal as a generalisation it appears to read as verbose repetitive, erroneous and understandably partisan and self-seeking.

6.2.3 As a detailed critique of Jacash Ltd’s appeal they have made the following points which NACAD 8 comment on as follows.

6.2.4 That there is agreement by all parties with the exception of NHS England that a Grant of Consent to join the Pharmaceutical List at Harrietsham should be given.

6.2.4.1 NACAD 8 concur with Jacash Ltd.

6.2.5 The only one Grant of Pharmaceutical Consent at Harrietsham should be made.

6.2.5.1 NACAD 8 concur with Jacash Ltd.

6.2.6.1 This NACAD 8 disagree with and indeed would say that its application offers genuine choice of pharmaceutical providers unlike the Jacash Ltd application for the following reasons:

6.2.7 That Jacash Ltd’s site location is to be preferred to that of NACAD 8’s.

6.2.7.1 Len Valley Practice inform me that:

6.2.7.2 “Jacash Ltd’s proposed site is not central to the village and is difficult to access across the busy A20. The scale of the map adduced by 43

Rushport Advisory LLP is misleading it does not show the site relative to the population density of Harrietsham. Access to the bulk of the village population would be via the busy A20 (a major trunk road) with major safety connotations. Len Valley Practice’s site is safe to access by both car and by pedestrians. Len Valley Practice have ample parking making a one stop shop for persons accessing Medical Services. This would reduce the carbon footprint. Len Valley Practice would say its location offers a better site to provide Pharmaceutical Services to all patients accessing Harrietsham.”

6.2.7.3 It is therefore evident that in fact NACAD 8 Ltd’s location is preferable to that of Jacash Ltd’s.

6.2.8 That Jacash Ltd’s application is superior because of greater core hours.

6.2.8.3 These provide a clear distinction between the two applications.

6.2.9 NACAD 8 Ltd would also make the following additional points in respect of the superiority of its application over that of Jacash Ltd:

6.2.14 The practice are in discussion with the Parish Council and an architect to draw up plans to upgrade the building in general and for a pharmacy/dispensary

extension in particular. The rent from NACAD 8 will secure this. Therefore, NACAD 8 Ltd’s application would decure the future of quality medical services at The Glebe Medical Practice at Harrietsham. This is again clear distinction between the two applications.

Conclusion

6.2.17 NACAD 8 Ltd would say that on at least the balance of probabilities that only one grant of consent to join the Pharmaceutical List of NHS England should be granted at Harrietsham.

6.2.19 NACAD 8 Ltd would say that its application for the above reasons is significantly superior to that of the Applicant Jacash Ltd. Therefore, Jacash Ltd’s appeal should be dismissed and NACAD 8 Ltd’s appeal likewise against the refusal should be granted. Therefore, the sole grant should be given to NACAD 8 Ltd. NACAD 8 Ltd respectively invites NHS Resolution so to determine on the balance of probabilities.

6.2.20 NACAD 8 Ltd confirms its willingness to attend or participate in an Oral Hearing whether physical or virtual if constituted by NHS Resolution.

6.3 NHS ENGLAND

6.3.1 NHS England wishes to comment on the appeal lodged against its decision in this case.

6.3.2 For ease of reading, the response from NHS England will address the main issues listed in the letter of Appeal in the same order as that used by Rushport Advisory on behalf of the Jacash Ltd in the letter of Appeal dated 20th October 2020 and the associated Pharmacy Needs Report (not dated).

‘NHS Decision’

6.3.3 Jacash Ltd expresses dissatisfaction with the way in which NHS England reached its decision to refuse the application and states the following in its Letter of Appeal:

6.3.3.1 ‘To simply claim that because patients access services in places such as Maidstone or Ashford, which are many miles away, that they should also be forced to access pharmacies elsewhere, simply ignores patient needs and the legal test. There is no consideration of whether such a requirement would be reasonable (which it is not), or whether access 45

to pharmaceutical services would be improved by granting the application (which it clearly would). Similarly, to focus on those who have access to cars or who consider their health to be good or very good is irrational. Those with the greatest need and highest demand for pharmaceutical services will be those who do not fall in to these categories, yet they receive no consideration from NHS England at all.’

6.3.4 NHS England wishes to refute the assertion that it only provided limited reasoning or consideration in reaching its conclusions and decision and that it is ignoring the needs of patients by referring to services elsewhere within reasonable distance from Harrietsham.

6.3.5 NHS England would like to refer to the statement made by the Appellant in the Pharmacy Needs Report p. 2

6.3.5.1 “Jacash are extremely well placed to understand the needs of Harrietsham given they operate the nearest pharmacy to Harrietsham in Lenham. It is also the principal pharmacy used by patients that visit the Len Valley Practice which is the main surgery in Lenham but also the parent surgery for the Glebe Medical Centre which is a branch surgery for Len Valley Practice in Harrietsham.” (Emphasis added)

6.3.6 The Pharmacy Needs Report p. 8 para 19 further describe Lenham, where a pharmacy already exists as:

6.3.6.1 “Lenham has the key services and community facilities expected of a Rural Service Centre with primary school, nursery and secondary school”

6.3.6.2 and section 20 “Lenham has a thriving town square with local pubs and restaurants, shops, library, take-aways, Community Centre, social club, fire station, Cricket club, bowling club, schools, florists, post office, estates agents, accountants, Co-op supermarket and pharmacy.”

6.3.7 As a key argument for a new pharmacy in Harrietsham, Jacash Ltd is also stating that the Pharmacy in Lenham will unable to meet the demand for pharmaceutical services based on the approval of 364 new houses in Harrietsham and refers to the requirement for Lenham to provide a further 1000 new houses by 2031, see Pharmacy Needs Report p. 9 para. 22. It is the view of NHS England that the potential future needs for additional pharmaceutical services in Lenham as indicated by the Appellant is a separate issue to that of meeting the needs for pharmaceutical services in Harrietsham as it exists at the time of the application.

6.3.8 Furthermore, the Pharmacy Needs Report p. 16 refers to the Kent PNA 2018 https://www.kpho.org.uk/__data/assets/pdf_file/0004/76747/Kent- Pharmaceutical-Needs-Assessment-2018.pdf that notes

6.3.8.1 “Like most of Kent, considerable new housing is expected to be built in the West Kent area over the next 20 years… There are proposed new dwellings in the A20 corridor towards Lenham … The services in these areas are currently provided by dispensing surgeries but the areas will need to be reassessed in the future as to whether the landscape has changed from rural to urban”.

6.3.9 This clearly shows that there is a great difference between the approval of housing development and the actualisation of needs for pharmaceutical services as these will not be realised before the housing has been completed,

sold and inhabited. It is unclear when this new development will materialise and which effect this will have on the provision of pharmaceutical services to the resident population Lenham let alone in Harrietsham.

6.3.10 As mentioned in the Kent PNA 2018, the need for pharmaceutical services in these areas will need to be reassessed in the future. The forthcoming Kent PNA will be able to take these developments into account, if deemed relevant, as those responsible for the current PNA have clearly not felt that the new housing development has impacted on the need for additional pharmaceutical services in Harrietsham or Lenham to such an extent that supplementary statements should be issued, see more later.

6.3.11 Finally, Jacash Ltd find that NHS England was “wholly wrong” to claim that it had not:

6.3.11.1 “presented any evidence to indicate that there were any persons with protected characteristics who are currently experiencing any difficulty accessing services”. NHS England were sent a copy of the attached Pharmacy Needs Report (which also forms the basis for this appeal). NHS England has not referenced a single page or comment from the entirety of the 33 page report. The report sets out why access to existing services is difficult for those who share a protected characteristic and NHS England has simply ignored the content of the report. It must also be remembered that all patients share multiple protected characteristics and the requirement in the Regulations is to consider the needs of all patients and to include in that consideration groups which may be small or in the minority.”

6.3.12 In the Letter of Appeal, Jacash Ltd makes references to how the application would meet the need of people with a protected characteristic by referring to the Pharmacy Needs Report p. 3 para. 7 ‘but it can be noted that the proposal is in an area which has a high level of elderly people and growing numbers of young people who are groups with protected characteristics.’

6.3.13 Again on p. 30 para 100. The proposal will cater for people of protected characteristics, namely those people of a particular age, disability and as well as expectant mothers and mothers with very young children.

6.3.14 And finally, on p. 30 para 101. As shown above the population of Harrietsham has population groups of elderly and young people both of which are groups with protected characteristics. The provision of pharmacy services in this area ensures the needs and rights of these groups are protected.

6.3.15 However, the criteria in regulation 18 (2)(b)(ii), against which NHS England has to assess the application, is that it has to satisfied that people who share a protected characteristic are having access to services that meet specific needs for pharmaceutical services, that are difficult for them to access in the area of the relevant HWB covering Harrietsham.

6.3.16 Jacash Ltd in the Pharmacy Needs Report refers to high level of elderly and growing number of young and although these might fall into groups with protected characteristics, no information was provided with regards to these groups having problems accessing services that meet their specific needs, nor were there any information provided to indicate the nature of these specific shared needs for pharmaceutical services.

6.3.17 To state that all or large groups of patients share protected characteristics, and that some of these ‘reasonably (can) be expected to have difficulties accessing pharmaceutical services, is making assumptions about needs and is not equivalent to providing evidence of specific difficulties.

6.3.18 Furthermore, NHS England was not aware of any complaints been made about lack of access to services.

6.3.19 NHS England was, therefore, not satisfied that, having regard to the desirability of people who share a protected characteristic having access to services that meet specific needs for pharmaceutical services, that the current services are difficult for them to access, and that granting the application would confer significant benefits on such persons.

“Letter of Support”

6.3.20 Jacash Ltd state that:

6.3.20.1 To further demonstrate that those living in and around Harrietsham who share protected characteristics would derive significant benefit from granting the application and that access to pharmaceutical services is difficult for many patients, my client provides the attached letters of support for the Committee’s attention. These letters focus on particular needs for pharmaceutical services which are difficult to access and some also note the growth in the area.

6.3.21 Jacash Ltd includes in the Letter of Appeal a number of submissions by individuals supporting the proposal for a pharmacy in Harrietsham. The letters are not only from individuals residing in Harrietsham but surprisingly also from people in Lenham, where there already is a pharmacy. The availability of pharmacy provision by Distance Selling Pharmacies has not been mentioned by Jacash Ltd although these numerous providers will be able to deliver medicine to the door of the patients just as their services form part of the range of pharmaceutical services providers available to patients in the area of Harrietsham.

6.3.22 However, NHS acknowledges that there will always be people, who, when solicited, would wish to see a local pharmacy and that in rural settings this might be more prominent than elsewhere due to the relative scarcity of local services generally. The criteria for granting an application under Regulation 18 does, however, not include the requirement to have pharmacies in every village but is instead focussing on reasonable choice with regards to obtaining pharmaceutical services in the area of the relevant HWB.

6.3.23 The list below illustrates the range of providers within up to 13 minutes car drive from Harrietsham and the core hours available covering weekdays as well as Saturday.

Local GPs: List size Postcode Minutes by Car/Train/Walk

The Glebe MC 9,423 ME17 1AP N/A

Len Valley 9,423 ME17 2QF 7min (3.7km)/13 Practice min/44min (3.5km)

The Orchard 3,463 ME17 3JY 11 min (8.4km) / Surgery 1hr28min / 1hr33min (7.5km)

Southways 6,699 ME17 3HT 15min (10.9km) / 1hr22min /

1hr57min (9.5km)

Local Core Dispensing Postcode Minutes by Car / Pharmacies Opening Stats (last Train / Walk Hours 3 months)

Saxon Warrior 09:00 – 17:00 21,491 ME17 2PG 4min (3km) / Pharmacy Mon-Fri 10min / 36,in (2.9km)

Paydens Ltd 09:00 -13:00, 48,157 ME14 4LX 10min (8.8km) / 14:00 – 18:00 17min / 1hr47min Mon-Fri (8.8km)

Spires Pharmacy 09:00 – 13:00, 7,700 ME15 8XW 13min (10.4km) / 14:00 – 18:00 32min / 2hr Mon – Fri, (9.9km) 09:00 – 13:00 Sat

Charing 09:00 – 12:30, 27,167 ME27 0AW 10min (9.6km) / Pharmacy 13:30 – 18:00 24min / 1hr52min Mon-Fri (9.2km)

6.3.24 NHS England acknowledges that access to pharmaceutical services, besides those provided by the dispensing Glebe Medical Practice in Harrietsham and services provided by Distance Selling pharmacies, requires access to either public or private transport as does access to most educational and shopping facilities as well as employment.

6.3.25 It is important to note that there are good public transport connections available in Harrietsham, as illustrated by Jacash Ltd, who quotes in the Pharmacy Needs report p. 5 para 12, the Maidstone Borough Local Plan (adopted October 2017) (Para 4.78) about Harrietsham:

6.3.25.1 “The village has good public transport connections to Maidstone and other retail and NHS England and NHS Improvement employment centres.”

6.3.26 The Pharmacy Needs Report pp. 18 – 19 also clearly demonstrates the journey options between Harrietsham and Lenham for the 2 miles journey by car or public transport, which, therefore, confirms the ease by which patients in Harrietsham can access pharmaceutical services within a reasonable travel distance.

6.3.27 On p. 26 of the Pharmacy Needs Report, it is stated that only 7.8% of households have no access to a car which in reality means that 92.2% of households are car owners, which is far above the national average of 75%.

Health and Wellbeing Board

6.3.28 Jacash Ltd places great emphasis on the fact that the Kent HWB, in response to the notification of the application, considers a pharmacy in villages such as Harrietsham to be beneficial.

6.3.28.1 “We note that the HWB agrees that granting this application would be beneficial to inhabitants and they state, the current PNA is being reviewed and areas which have changed considerably since the last review are being assessed as a priority. It is generally felt that in villages such as Harrietsham where the population is increasing rapidly, such services such as a pharmacy sited in the middle of the village would be beneficial to the inhabitants.”

6.3.29 Jacash Ltd highlights that:

6.3.29.1 “It is very unusual for the HWB to support the granting of a new pharmacy when it has not already been identified as a need within the relevant PNA. As such, the statement from the HWB should have been afforded more weight in the decision making process, but is not referenced at all by NHS England (other than listing the statement in the report).”

6.3.30 NHS England would like to clarify that whilst the relevant HWB is one of the parties to be notified of a market entry application according to the Regulations, the key criteria, against which an application for ‘Unforeseen benefit’ are assessed, are those mentioned in Regulation 18, which refers to whether or not the benefits are included in the relevant PNA. Although the statement from the HWB says that a pharmacy would be beneficial, this does not constitute an assessment that ‘granting the application would confer significant benefits on persons in the area of the relevant HWB which were not foreseen when the relevant pharmaceutical assessment was published’. (Reg 18(2)(b) (emphasis added).

6.3.31 Furthermore, Jacash Ltd makes an incorrect assertion about the decision making of NHS England.

6.3.31.1 “Whilst it may appear slightly unkind to make this suggestion, it would appear that NHS England was aware that they had competing applications from both the local provider of medical services and the local provider of pharmaceutical services who have both identified the requirement for a pharmacy in Harrietsham and where that requirement is accepted by the LPC and the Health and Wellbeing Board – but have chosen not to grapple with the issue of which application should be preferred by simply refusing both applications and passing the responsibility to Primary Care Appeals.”

6.3.32 NHS England would wholly disagree with this ‘slightly unkind’ suggestion that it should have chosen ‘not to grapple with the issue of which application should be preferred by simply refusing both applications and passing the responsibility to Primary Care Appeals’. NHS England is fully aware of its responsibilities in accordance with the Regulations and would never wish to negate on these.

6.3.33 In reaching its decision, NHS England made use of its own site report for Harrietsham; the Kent PNAs and its supplementary statements; demographic, car ownership and health data from the last census; distances, journeys to, range of services and opening hours of pharmacies, dispensing and other GP surgeries within a reasonable travel distance; as well as comments submitted by interested parties as part of the notification period.

6.3.34 It was through the careful examination of this comprehensive set of data and documents against the criteria in the Regulations, that NHS England reached its decision to refuse the application.

6.3.35 Jacash Ltd agrees with NHS England that the Kent PNA contains no mention of Harrietsham, nor does the separate PNA Appendix for West Kent Clinical

Commissioning Group (GCG) https://www.kpho.org.uk/__data/assets/pdf_file/0004/76774/Kent-PNA-2018- WK-Area.pdf , as stated in the Pharmacy Needs Report p. 2 para. 5. NHS England would wish to assert that the reason why there is no mentioning of Harrietsham in neither the Kent PNA nor the West Kent CCG PNA Appendix is because there have been no substantial changes that have impacted significantly on the existing need for pharmaceutical services in the area of Harrietsham.

Primary Care Appeals – Guidance for Parties

6.3.36 Jacash Ltd refers to the PCA Guidance Note for Parties Involved in Pharmacy Appeals dated 16 December 2019 which states:

6.3.36.1 “Where the parties agree on a relevant fact, NHS Resolution will proceed on the basis of that fact having been proven for the purposes of the appeal. Where a party has provided evidence of a relevant fact which has not been disputed, NHS Resolution will proceed on the basis of that fact also having been proven.”

6.3.37 And Jacash Ltd further states that

6.3.37.1 “… as no party has disputed the evidence provided NHS Resolution must proceed on the basis that the facts in evidence are proven. In fact, all the parties agree that a new pharmacy should be permitted to open in Harrietsham.”

6.3.38 As a party to the Appeal, NHS England would wish to respectfully repeat its view that the criteria for granting an application, under regulation 18 ‘Unforeseen benefits’ for a pharmacy in Harrietsham, are not met.

Len Valley Practice and NACAD 8 Ltd

6.3.39 NHS England notes that this section relates to issues which Jacash Ltd has raised with regards to the competing application for a pharmacy in Harrietsham made by NACAD 8 Ltd.

6.3.40 Jacash Ltd is providing extensive comments on application itself and the comments provided by Len Valley Practice in support of that application. NHS England has no comments to add to this point raised by Jacash Ltd.

Kent LPC

6.3.41 Jacash Ltd refers to the comments by the Kent LPC

6.3.41.1 “We note that the LPC as well as the HWB also support the approval of a new pharmacy in Harrietsham. The LPC makes a valid point that patients do not need to attend their surgery as often as they used to and that the pharmacy “should be beneficial to all in the surrounding areas”. This further supports my client’s application over that of the doctors”.

6.3.42 However, the comments from the LPC is less precise about when a need for additional pharmaceutical services is required:

6.3.42.1 “There has been significant housing being built in the area, and there continues to be more being built. We do believe that the population has increased significantly since the 2011 census and will continue to do so.

6.3.42.2 The PNA has been delayed due to COVID-19 but we believe that this increase in population and the needs of the population in the Harrietsham area would lead to a need for pharmaceutical provision.” (Emphasis added)

6.3.43 It is clear from this statement that assumptions are made about population growth that ‘would lead’ to a need for pharmaceutical provision. However, as mentioned above, whilst there no doubt there has been an increase in the population in Harrietsham since 2011 when the last census took place, a lot of the housing development has not yet been completed and inhabited to such as extend that a supplementary statement to the Kent PNA was deemed necessary to meet the new needs. The West Kent CCG Complementary PNA, which specifically covers the area including Harrietsham, does not identify a need either and find that pharmaceutical services mainly are good, but that new development might change some areas from rural to urban, see Conclusion p. 16:

6.3.43.1 “Therefore, pharmaceutical services are mainly good across the area from Mondays to Fridays and we do not need any more providers in the area except 1) There will be a need for pharmaceutical services in the Leybourne Chase development and in the Peters Village development, within the life of this PNA. 2) Much of the current and proposed development in the area will result in the landscape changing from rural to urban. This may have an effect on current provision in these areas.”

6.3.44 From the site visit report carried out by NHS England and not disputed by Jacash Ltd, there is no disagreement about the status of Harrietsham still remaining rural despite the current housing development.

Preference in Competing Applications

6.3.45 Jacash Ltd, finally, in the Letter of Appeal, puts forward the assumption that the appeal is solely about which of the two applications should be granted.

6.3.45.1 “It is similarly clear that only one pharmacy is required. Further to the judgment of the Honourable Mr Justice Kay in R (on the Application of RUSHPORT ADVISORY LLP) v NATIONAL HEALTH SERVICE LITIGATION AUTHORITY [2016], only one application should be approved as to grant both would lead to overprovision. “

6.3.46 NHS England would dispute this as being the only choice and would wish to maintain its view that the criteria for an application made under regulation 18 have not been met.

6.3.47 From the wording of Regulation 4 Schedule 1 it is clear that the relevant HWB in its PNA(s) should be providing an identification of necessary services or improvement and better access: and any gaps in provision. It is also clear that the PNA should cover not only the need for necessary services and improvement and better access at the time of issuing the PNA, but should also identify these, if they, in any specified future circumstances, would, if provided, meet a future need or secure improvement or better access to pharmaceutical services in its area.

6.3.48 With regards to any issues of access to pharmaceutical services, the overall Kent PNA 2018 and its complementary West Kent CCG PNA are both covering the HWB area relevant to Harrietsham, and none of these documents have not flagged up changes in local needs for pharmaceutical services, which are meriting a supplementary statement.

6.3.49 There is no information provided in the Letter of Appeal that demonstrates a change in local circumstances which these PNAs have not been able to take into account when examining and monitoring the needs for pharmaceutical services in the area of Harrietsham.

6.3.50 Jacash Ltd mentions issues such as number of residents and visitors, the journeys that need to be taken to access the pharmacies closest to the proposed location, the health and profile of the local populations. However, all these factors have remained broadly unchanged since the PNAs were published in 2018, which was not that much earlier than the time of the application being submitted and as mentioned above no relevant supplementary statements have been deemed necessary due to changes in local needs in the area of Harrietsham.

Overall

6.3.51 NHS England remains of the view that there was no evidence provided to suggest that the population, in the best estimate location for the application, currently has neither a reasonable choice nor access to pharmaceutical services. Therefore, it was not satisfied that granting the application would confer significant benefits on persons. It was also mindful that where it considers there is a need to do so, NHS England already has the power to bring about changes to the opening hours of existing pharmacies in the relevant area of the HWB.

6.3.52 In considering an application for unforeseen benefit NHS England must assess the application against the various requirements set out in Regulation 18. Firstly, Regulation 18(1)(a) needs to be satisfied in that NHS England is required to determine whether it was satisfied that granting the application or granting it in respect of some only of the services specified in it, would secure improvements, or better access, to pharmaceutical services, or pharmaceutical services of a specified type, in the area of the relevant HWB. Having been satisfied that this was the case, NHS England also had to be satisfied that the application meets the other criteria as set out in Regulation 18(1)(b) and Regulation 18(2).

6.3.53 In assessing the application against the other criteria in Regulation 18, NHS England’s decision letter explicitly set out the reasons why these criteria were not met.

6.3.54 NHS England, when considering the criteria for reasonable choice, took into account the relevant PNAs, the comprehensive data relating to the physical access, barriers to access, the health, size, and demography of the local population, as well as car ownership profile. In addition, NHS England assessed the services provided by the existing range of pharmaceutical service providers and their core opening hours; as well as the pharmacies’ locations and the nature of the journeys (time, travel mode and distance) required to reach them. Deliberating on all this, NHS England reached the decision that there was already a reasonable choice with regards to obtaining pharmaceutical services in the area of the relevant HWB.

6.3.55 Furthermore, NHS England was not aware that any complaints have been received about the current level of services provided, and considers ‘complaints’ to be of a different nature to ‘Letters of support’.

Conclusion

6.3.56 Firstly, in reaching its decision to refuse Jacash Ltd’s application under Regulation 18, NHS England carefully considered the relevant Kent and West Kent Pharmaceutical Needs Assessments conscious that the documents

provide a full, in-depth and evidenced analysis of the situation as it was assessed at the date of publication (March 2018) and other relevant supporting documents. NHS England was mindful of the fact that, under Regulation 6(2) of the NHS (Pharmaceutical Services) Regulations ("the 2012 Regulations") [sic], the body responsible for the PNA must make a revised assessment as soon as reasonably practicable (after identifying changes that have occurred that are relevant to the granting of applications) unless to do so appears to be a disproportionate response to those changes. Where it appears disproportionate, the responsible body may, but is not obliged to, issue a Supplementary Statement under regulation 6(3). Such a statement then forms part of the PNA. Although Supplementary statements have been issued following the publication of the PNA none of these refers to matters relevant to the application for a new pharmacy made under Regulation 18 in Harrietsham.

6.3.57 NHS England noted that the recent 2018 PNA and its supporting documents do not consider that there are any gaps at the moment in the provision of pharmaceutical services in the area of the proposed site for Jacash Ltd’s pharmacy application.

6.3.58 Secondly, NHS England is also of the view that no specific information was provided by Jacash Ltd to demonstrate that there is significant difficulty for people who share a protected characteristic to have their need for pharmaceutical services met, or anyone else in accessing current pharmaceutical services; or that a pharmacy at the proposed site would improve access significantly for residents in the area of the relevant HWB.

6.3.59 NHS England acknowledges, however, that with any application for a new pharmacy some might find it convenient to have a pharmacy close to hand, as illustrated by the letters of support solicited by Jacash Ltd; but this is not, in itself, a determining factor. Also, there is already a reasonable choice of established local providers of pharmaceutical services within a reasonable travel distance in addition to Distance Selling Pharmacies and, between them, they provide reasonable core opening hours throughout the weekdays with some coverage during the Saturdays

6.3.60 Therefore, NHS England considers that, to have a pharmacy in the proposed location in Harrietsham, will not result in a significant benefit being conferred with regards to choice or improvement in pharmaceutical services to persons in the relevant HWB area and is, therefore, of the view that Jacash Ltd’s application did not meet the criteria set out under Regulation 18.

6.3.61 NHS England wishes to maintain its view that the application should be refused.

7 Observations

7.1 NHS ENGLAND

7.1.2 Summary of dispensing and non-dispensing patients per GP surgery

7.1.3 Dispensing surgeries and numbers of patients living within 1.6km of 'ME17 1AP' (this postcode was used for both applications):

Total non-dispensing patients within 1.6km 165

Total dispensing patients within 1.6km 2810

Number of dispensing and non-dispensing patients 109854 registered in above practices

Patients within 1.6km radius Total Registered Patients per practice Grand totals row 2810 166 80201 29653 109854 Practice code & Name Sum of Sum of Non Non Dispensing Total Patients dispensing Dispensing dispensing G82031 – Bower Mount 0 1 11910 0 11910 Medical Practice G82074 – Bearsted 42 18 11862 2187 14049 G82093 – Lenham 2716 119 2797 6630 9427 G82094 – Charing 26 4 5215 2033 10248 Surgery G82112 – Headcom 1 1 4948 3046 7994 G82123 – Balmoral 0 1 4783 0 4783 Gardens G82164 – The Vine 0 1 12589 0 12589 G82222+ - Sutton 16 2 1022 5687 6709 Valence GG82604 – 0 11 14638 0 14638 Northumberland Court G82691 – Langley 7 1 1786 1676 3462 G82719 – Matrix Medical 0 1 7968 0 7968 Practice G82790 – Old School 2 0 683 5394 6077 Surgery ZZZ 0 6

7.2 RUSHPORT ADVISORY LLP ON BEHALF OF JACASH LIMITED

7.2.1 In relation to the matters raised Rushport Advisory LLP provide the following information in rebuttal.

NACAD 8 Limited

partners of Len Valley practice”. It is notable that Mr Morley does not tell the Committee what agreement he does have.

Which Application Should be Preferred?

7.2.8 The Applicant provides an alternate location which is central within Harrietsham, thus providing a choice of location.

Site Location

Core Hours

Other Points Raised

7.2.13 Mr Morley then offers some other points of differentiation between the two applications which are;

pharmacy that could provide a safe environment. This is self-evident from the fact that the doctors closed the surgery premises during the pandemic and the doctors accept that this occurred.

“We are not claiming innovative services. The appeals authority will be aware that only one of the three Regulatory tests need to be satisfied.”

7.2.17 The Applicant simply disagrees with the other points raised by Mr Morley.

Len Valley Practice

“There is no contractual agreement between the partners with NACAD 8 to purchase the equity from Mr Morley if their application was to be successful.”

7.2.21 The practice states;

7.2.26 It is difficult to understand how the practice and Mr Morley can sensibly claim to have had detailed discussions about the pharmaceutical needs of patients and identified the need for a pharmacy to serve all patients when they actively choose not to serve the needs of those patients that they claim to be permitted to serve at present.

NHS England

7.2.28 It notes that NHS England has only submitted comments on the NACAD 8 Ltd appeal.

7.2.29 In its submission the application from Jacash Limited should be preferred because;

7.2.29.1 The Applicant has now secured premises in which they will be able to open the pharmacy and has provided evidence of this.

7.2.29.2 The Applicant has provided evidence of patients who share protected characteristics having difficulty in accessing existing pharmaceutical services.

7.2.29.3 The Applicant’s premises will be on the main road through the village, in comparison to the premises proposed by NACAD 8 Limited which are not central or visible from the main road.

7.2.29.4 The Applicant’s application provides reasonable choice.

7.2.29.5 The Applicant is offering longer core opening hours than are offered by NACAD 8 Limited and can therefore guarantee access to pharmaceutical services to patients for more hours every week.

7.2.30 It looks forward to hearing from you in due course. 58

7.3 NACAD 8 LTD

7.3.1 On behalf of NACAD 8 it would say the following in response to these responses.

Conclusion

7.3.4 Nothing in the responses it has seen causes NACAD 8 to demur from its adduced conclusion in its initial appeal. It repeats this verbatim as follows:

7.3.7 It would say that on at least the balance of probabilities that only one grant of consent to join the Pharmaceutical List of NHS England should be granted at Harrietsham.

7.3.9 It confirms its willingness to attend or participate in an Oral Hearing whether physical or virtual if constituted by the Authority.

8 Further Comments

8.1 NACAD 8 LTD

8.1.1 On behalf of NACAD 8 it would say the following in response to the responses:

8.1.1.2 It would also point out that the Len Valley Practice does in fact supply and dispense the repeat prescriptions and the associated medication from their Harrietsham branch surgery.

8.1.1.3 Apart from the above caveats NACAD 8 has no new evidence to adduce in this matter.

Conclusion

8.1.3 The practice are confident that NACAD 8 will at least mirror the surgeries opening hours and that they can enjoy a good working relationship. They are not reassured that that would be the case with Jacash. A good working relationship with the owners of a pharmacy can only be beneficial for all patients accessing Pharmaceutical Services in Harrietsham.

8.1.4 It would say that on at least the balance of probabilities that only one grant of consent to join the Pharmaceutical List of NHS England should be granted at Harrietsham and that it should be given to NACAD 8. It respectfully invites the Authority so to determine.

8.2 LEN VALLEY PRACTICE

enlarge the existing dispensary, as part of its landlords proposed building upgrade, if it is allowed to continue to dispense to its Harrietsham patients.

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