24 October 2018 REF: SHA/19898 APPEAL AGAINST SOUTH WEST

24 October 2018

1 Trevelyan Square REF: SHA/19898 Boar Lane Leeds APPEAL AGAINST SOUTH WEST AREA TEAM, LS1 6AE NHS COMMISSIONING BOARD ("NHS Tel: 0113 86 65500 ENGLAND") DECISION TO REFUSE AN Fax: 0207 821 0029 APPLICATION BY RUSHPORT ADVISORY LLP Email: [email protected] FOR INCLUSION IN THE PHARMACEUTICAL LIST OFFERING UNFORESEEN BENEFITS UNDER REGULATION 18 WITHIN A 200M RADIUS OF THE JUNCTION OF HOOE ROAD AND BARTON ROAD, HOOE, PLYMOUTH, PL9 9RG.

1 Outcome

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

1.2 The Committee determined that the application should be refused.

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 www.nhsla.com/Pages/PrivacyPolicy.aspx

24 October 2018

REF: SHA/19898 1 Trevelyan Square Boar Lane APPEAL AGAINST SOUTH WEST AREA TEAM, NHS Leeds COMMISSIONING BOARD ("NHS ENGLAND") LS1 6AE DECISION TO REFUSE AN APPLICATION BY Tel: 0113 86 65500 RUSHPORT ADVISORY LLP FOR INCLUSION IN THE Fax: 0207 821 0029 PHARMACEUTICAL LIST OFFERING UNFORESEEN Email: [email protected] BENEFITS UNDER REGULATION 18 WITHIN A 200M RADIUS OF THE JUNCTION OF HOOE ROAD AND BARTON ROAD, HOOE, PLYMOUTH, PL9 9RG

1 A summary of the application, decision, appeal, representations and observations are attached at Annex A.

2 Site Visit

2.1 The Committee started its journey from the hotel and proceeded along the A379 to Morrisons on the junction of the Pomphlett Road. This is a large ‘edge-of-town’ superstore with a large car park, petrol station and adjacent fast-food restaurant. The store is being expanded. The Pharmacy occupies a sizeable position in the store with a considerable range of over the counter products and general beauty/healthcare items alongside. The store is easily accessible to customers with limited mobility. The shop and car-park were reasonably busy for the time of day. Our taxi-driver pointed out the new-build houses just to the north of the A379. We understand that roads around the store can become very busy a times.

2.2 We travelled along the Pomphlett Road to the Broadway shopping centre in Plymstock. There is a large car-park adjacent to the centre which appears to be formed by the pedestrianisation of a wide road. It is flat or on a minimal gradient and has an appearance similar to a small town centre high street. There is a wide range of shops including a butcher, two banks, Iceland food store, a card-shop and other occasional businesses. There are two opticians (Boots and Specsavers) and a large Boots chemist shop and a Superdrug. There are flats immediately above the shops. There is a Lidl store and a public library a short walk across the road. The area seemed quite busy with people parking and walking into the centre. We noticed the 5A bus by the bus-stop at the southern end of the Broadway. The Broadway and Morrisons appeared to be two major and convenient destinations for shopping available to residents of Plymstock and surrounding areas.

2.3 The Committee continued south to Church Road pharmacy which is a small establishment tucked away in a residential area. There is a hairdresser and sandwich shop next door and the GP surgery is a short distance away. Car- parking was very limited. We then travelled east along the Stanborough Road to Elberton to see the site of the grant to Ascent Pharmacy. The “Springfield” pharmacy had a notice saying it would be opening in mid-October. It is one of a number of shops serving the eastern end of Plymstock and its surroundings. The shops include a small Co-Operative store, a post-office, a butcher and various other businesses. We noted the 5A bus on its rounds.

2.4 The Committee next travelled west along the Springfield Road and north to the Well Pharmacy with the surgery nearby. This pharmacy is also set within

a number of other businesses. It had a reasonable amount of on-road parking nearby. We noted the 7D bus also doing the rounds. From here the Committee travelled west along Round Park Road toward Hooe. There are a number of hills on the journey of variable gradients. The pavements are of varying quality with a lot of patchwork mending. The Hooe Road itself slopes on either side of the stream that feeds Hooe Lake. There is a steep gradient up into Hooe and then down again to the application site (the ‘location’). We noted the large school on the way down toward the location.

2.5 The location is said to be within 200m of the junction between Hooe Road and Barton Road. At this location there is a small sandwich bar a second- hand car sales with a semi-derelict barn behind it, a Chinese and an Indian takeaway, a very small Premier ‘corner shop’ and a hairdresser. The Premier shop was closed when we arrived but was opened-up as we walked past. It has the appearance of an occasional shop stocked with small items, such as cigarettes, tins, milk and lottery tickets. It would not cater for daily or weekly shopping. There are what appear to be social housing units behind and above these business premises. The premises looked rather run-down and uninviting and no-one accessed any of them whilst we were present. The takeaways and the hairdresser were closed in any event. Parking is across the main road where there is a large green space.

2.6 The Committee continued west to Mountbatten passing St Luke’s Hospice on the route. There are a few newer houses in this area but then the road drops down to a more commercial area with a marina and several businesses. There is a small hotel at the end of the road and there is said to be a water- ferry but the taxi-driver observed that this is very unreliable. There was no sign of a ferry or passengers. (We were unable to assess the comment by the taxi-driver and, having passed this on at the hearing, we put this information out of our minds.)

2.7 We returned east to the Well pharmacy and surgery travelling through Turnchapel where there are some newer but well established homes. We noted the moorings and marina and associated small businesses. We then travelled through a fairly new housing development to Oreston on the side of Hooe Lake opposite the application site to look for the location of the causeway across Hooe Lake. We identified a foot and cycle-path around the edge of the lake, part of the coastal path. From here we then drove back through Oreston to Morrisons and thereafter to the hotel.

2.8 Overall the committee gained the impression that the Morrisons store and the Broadway are likely to be the two principle destinations for weekly shopping by residents of Plymstock and Hooe. There are other smaller but nonetheless busy locations in Radford Park to the west and Elburton to the east. Plymstock is a densely built-up area spread out over a number of hills. We were advised that the roads get very busy at commuter-times and we experienced clear pinch points.

2.9 Hooe is a quite separate community divided from Plymstock by a steep narrow valley and stream. It too is densely built up and has a number of steep inclines. Turnchapel to the north-west of Hooe is a small area of housing. Further west there are more business and marina-related activities. The location itself is unprepossessing with tired buildings and few facilities. We could not conceive or it as a hub or destination. It may fulfil occasional needs

and provide shopping for odds and ends but it could not provide a daily or a weekly shop.

2.10 Whilst the ability to walk distance and gradient is person-specific, as a generalisation it would not be reasonable to expect people to walk from Hooe to a pharmacy in Plymstock. It is far more likely that people will drive or use public transport, a taxi or go with friends. We saw at least three buses on our journey. We saw no elderly people or young children walking in Hooe.

3 A summary of the above observations was provided to those in attendance. They were invited to comment upon them OR indicate if any of the observations appeared to be inaccurate.

3.1 No such comments or observations were made

4 Oral Hearing Submissions

Preliminary Matters

4.1 There were two preliminary matters. First the Committee noted that there had been a complaint of non-disclosure earlier in the application process. The Committee observed that whatever the rights and wrongs of this, it would look at all matters afresh and come to its own conclusions. Mr Daly agreed that this was an appropriate stance to take. Second, there was a short discussion regarding the test to be applied under Regulation 18.

4.2 The Committee observed that, in short the test was set out in R.18(1) namely whether granting the application would confer improvements or better access to pharmaceutical services that were not included in the relevant pharmaceutical needs assessment (PNA). The decision on improvements or better access was subject to their being no significant detriment to current services or planning (Ss.2(a)) furthermore, the factors set out in R.18(2)(b) (choice; protected characteristics need & difficulty; innovation) were to be considered finally, any grant should provide significant benefit to people in the area. The matters in R.18(2)(b) are persuasive but not necessarily determinative. Mr Daly agree with these observations

Mr Daly on behalf of the Applicant

4.3 Mr Daly advised that he would not cover matters in great detail since they were set out in the papers. He would instead highlight important factors and any additional information

4.4 Regarding the location he said the specific premises, now occupied by an Indian Takeaway was empty at the start of this application process. He mentioned another premises across the village-green now being converted to a hairdressers and said that any available premises is snapped-up quickly. He said that securing premises is not part of the test.

4.5 Mr Daly said that the application was based on providing improvements or better access to residents of Hooe and this included residents in Turnchapel. He said it was not disputed that if someone can get to a car they can get to a pharmacy albeit the road to Plymstock can get busy. He said that it was walking which was not an option and it was against this that the issue of improvements or better access was to be considered. He said that the buses

do not serve the entirety of Hooe, the 7D only served the eastern side of the village on an hourly basis and the 2A went to Mountbatten. The cost of travelling into Plymstock was £3.20 for an adult. He said that Hooe had some 4500 residents which is similar to a small town and that there were significant issues of deprivation.

4.6 The Committee was referred to the bundle of papers and to p86 para 5.15 and para 5.13 regarding population size and deprivation. He also said that the Sunshine Residential Care Home in Bellview Road served elderly and sensory impaired residents who were encouraged to be independent. There were two other homes, Wisteria Home and St. Luke’s which is a hospice for end of life care. Residents in these establishment would be high users of pharmaceutical services. In addition the Hooe Primary School had 220 pupils. He said there was no primary care provider in Hooe.

4.7 Mr Daly said that choice is a function of access to a great extent but it also a matter of population numbers. A pharmacy in Hooe and one elsewhere in nearby Plymstock would not be unreasonable however at present there was no pharmacy in Hooe and the geography/topography meant that access on foot was unrealistic. £3.20 was a lot of money for someone living in deprived areas and this too needed to be considered. He accepted that residents of Hooe can and do leave the area to do their weekly shopping but that residents could not plan for sickness or childcare needs. It was not reasonable to take a sick child on the bus. With no primary healthcare provider in Hooe matters such as self-care and flu-jabs were also important.

4.8 Regarding the issue of protected characteristics Mr Daly reminded the Committee that the Equality Act and principles of equality were to protect minorities not majorities so the number of people who may or may not have money or access to their own transport was not determinative against the application. Mr Daly said that the ferry did run from the Mountbatten area but that it could not be used in winter.

4.9 The issue of a local drop-in centre was raised and it was clarified that there is no such service, patients would have to attend one of the three GP practices or go to hospital A & E which is at a considerable distance.

4.10 Mr Daly invited the Committee to have regard to all the matters set out in the bundle.

5 Consideration

5.1 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.

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

5.3 The Committee noted that the same Applicant had submitted an application for this location in 2016, which was refused on appeal in June 2017(SHA/18650). The Committee, whilst mindful of its previous decision (a copy of which was sent to parties with the current appeal) none the less had to determine the current application on its own merits.

5.4 The Committee noted the Applicant’s reference to NHS England having in respect of its current application, allegedly taken its decision to refuse the application against the recommendation of its own case officer. In the Applicant’s view, NHS England should have explained why they had reached a different decision. The Committee takes no view on this matter and was mindful that it would be determining the application afresh on appeal.

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

Regulation 31

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

(1) A routine or excepted 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).

5.7 The Committee noted that in Part 5 of its application form, the Applicant had stated: “No other pharmacy in same or adjacent premises so not applicable.” The Committee further noted NHS England’s decision letter states: “…..that there are not any pharmacies currently located within the best estimate location, so Regulation 31 did not require the application to be refused.” The Committee, having regard to the information provided to it including that the above had not been disputed on appeal, determined that it was not required to refuse the application under the provisions of Regulation 31.

5.8 The Committee noted that, if the 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 18

5.9 The Committee noted that this was an application 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)."

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

5.10.1 confirm NHS England’s decision;

5.10.2 quash NHS England’s decision and redetermine the application;

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

Regulation 18(1)

5.11 The Committee considered 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 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

5.12 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 application was granted were or was included in the PNA in accordance with paragraph 4 of Schedule 1 of the Regulations.

5.13 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).

5.14 The Committee noted NHS England’s comment that, at the time this application was submitted, the 2015 Plymouth PNA was still in force. However a new Plymouth PNA was approved by Plymouth Health & Wellbeing Board on 22 March 2018. Extracts from both PNAs were available to NHS England.

5.15 The Committee further noted that NHS England’s decision making panel was informed that the applicant and interested parties were notified on 4 April 2018 of the approval of the 2018 PNA by Plymouth Health & Wellbeing Board and given until 12noon on 18 April 2018 to make any representations regarding the applicability of the 2018 PNA to the application. No such representations had been received. NHS England had considered that there was no reason not to apply the 2018 PNA to this application.

5.16 The Committee considered the Pharmaceutical Needs Assessment for Plymouth ("the PNA") 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 2018-2021 and one supplementary statement had been issued, This did not relate to the current application.

5.17 The Committee noted the 2018-21 PNA includes under the heading ‘9.Conclusion’:

“Current Provision

5.17.1 Plymouth City Council’s H&WB has had regard to the pharmaceutical services referred to in this PNA in seeking to identify those that are necessary, have secured improvements or better access, or have contributed towards meeting the need for pharmaceutical services in the area of the H&WB.

Necessary services: current gaps in provision

5.17.2 A need for a new pharmacy in the Elburton area was identified through an unforeseen benefits application and is due to be met by a granted application; there is therefore not a current need. Subject to the following, a future need for a pharmacy in Elburton will arise if the current grant for a pharmacy in Elburton lapses without a pharmacy opening.

5.17.3 Devon H&WB has identified, within the South Hams locality of the Devon PNA, a future need for a pharmacy in the western neighbourhood of the Sherford development, which is close to Elburton. Plymouth and Devon H&WBs are jointly of the view that:

5.17.3.1a pharmacy in Elburton would also meet the future need which has been identified in Sherford,

5.17.3.2a pharmacy in the western neighbourhood of Sherford would also meet the need for a pharmacy in Elburton.

5.17.4 Therefore, a future need for a pharmacy in Elburton will arise if the current grant for a pharmacy in Elburton lapses without a pharmacy opening, unless a pharmacy has opened in the western neighbourhood of Sherford. If that future need does arise in Elburton, it will be met if a pharmacy opens in the western neighbourhood of Sherford.

Necessary services: future gaps in provision

5.17.5 The increasing demand pressure in primary care is recognised and as such the role of community pharmacy may significantly change as a result, over the lifetime of this PNA. This may need innovative approaches in contractual arrangement in some locations to support these changes. However the precise nature of the changes have yet to be formed.

5.17.6 Across the existing services in Plymouth there is unused capacity for further MUR and NMS services and as a result there is no gap in provision and no need for additional capacity.

5.17.7 With regards to the ‘on demand availability of specialist drugs’ enhanced service, future provision within this PNA is considered to be adequate and thus there will not be any future gaps.

5.17.8 With regard to the development in the Plymstock Quarry area, a future need will arise at the point when 1,200 houses are completed and occupied.

5.17.9 There is significant development planned in the Plymouth North locality. However, it is not anticipated that it will take place within the period covered by this PNA. If development does in fact progress more quickly, a future need will arise in the Derriford area once 300 houses are completed and occupied.

5.17.10As a consequence of the deprivation and isolation of the community of Barne Barton and the lack of medical provision in this area, there is a need for a pharmacy in Barne Barton. In January 2018 NHS England granted (subject to appeal at the time of writing) applications from Ascent Healthcare and Day Lewis Pharmacy to open pharmacies in Barne Barton. If one of those pharmacies opens then the need will be met. Accordingly, there is not a current need. However if:

5.17.10.1both applications were to be refused on appeal, or

5.17.10.2both applications expire without a pharmacy opening (or one is refused on appeal and the other later expires without opening)

5.17.11Then there would be a future need for a pharmacy in Barne Barton. Such a pharmacy should have core hours provision on all weekdays and Saturday mornings (at least), and opening hours on a Sunday would also be desirable. The pharmacy should also be willing to provide a wide range of additional services to compensate for the lack of medical provision in Barne Barton.

5.17.12The development of 2,000 new houses is planned for the Woolwell area, which is in the South Hams district of Devon (so does not fall within the Plymouth City boundary). However Woolwell is adjacent to the city boundary and as such this development would result in a future need once 300 houses are built and occupied. Given the location of the development, that need could be met by a pharmacy located either in Woolwell or in the area of Plymouth close to Woolwell.

Other relevant services: current gaps in provision

5.17.13With regards to Influenza vaccination advanced service, current provision is deemed to be adequate and there are not expected to be any future demands for this service over the lifetime of this PNA.

5.17.14The urgent supply advanced service (NUMSAS) is a pilot service and due to be evaluated in due course. Therefore this PNA does not comment on the adequacy of provision at the present time however the future commissioning plans for this service may be known when the final PNA is published.

5.17.15Services commissioned through the local authority and CCG, as well as other relevant NHS services, are represented in the PNA for reference but are outside the scope for assessment of need and therefore no statement is made in this PNA as to the adequacy of these services.

9.5 Other relevant services: future gaps in provision

5.17.16None identified.”

5.18 The Committee noted there is no specific reference to Hooe in the PNA.

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

Regulation 18(2)(a)(i)

5.20 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"

5.21 The Committee noted the applicant’s claim that no significant detriment to the proper planning of pharmaceutical services would result from the granting of its application. The Committee had no information beyond that contained in the papers which show that NHS England have previously stated that it had no particular plans regarding pharmaceutical services in this part of Plymstock. Regulation 18(2)(a)(i) was not an issue raised by the parties on appeal.

5.22 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.

5.23 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)

5.24 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"

5.25 The Committee noted the applicant’s comment that no significant detriment to the arrangements currently in place for the provision of pharmaceutical services would result from the granting of its application. The Committee had no information beyond that contained in the papers which show that NHS England have previously stated that there had not been any suggestion of significant detriment to the arrangements already in place. The Committee noted Regulation 18(2)(a)(ii) was not an issue raised by the parties on appeal.

5.26 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.

5.27 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)

5.28 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) [Choice]

5.29 The Committee determined that this part of the regulation requires a two-fold analysis. First, to consider whether there is or is not currently a reasonable choice available to persons in the area regarding access to pharmaceutical services and, if there is not, to consider whether granting the application would confer significant benefits to such persons.

5.30 The applicant placed particular emphasis on two points, first it was said that Hooe is a particularly deprived area and, its location, topography and transport infrastructure make access to pharmacies difficult. These factors were said to adversely affect choice.

5.31 The Committee accepted the proposition that Hooe is a separate village to Plymstock albeit they are close neighbouring areas. The narrow valley and stream referred to in our site-visit separates the two geographically and the topography emphasises this to a degree. They are in effect two adjoining

villages. However, Plymstock is the larger of the two with far more facilities than Hooe. It is plain that residents in, or visitors to Hooe, will access the majority of their daily or weekly needs outside Hooe and Plymstock will meet many of their needs.

5.32 Plymstock’s facilities include four pharmacies (with a 5th opening at Elburton in a few days) and three medical practises each with a pharmacy nearby. The papers place the existing pharmacies at around 1 – 3 miles from the location and it is said to take some 20 – 35 minutes to walk to them from the location. Whilst such times and distances may be acceptable to a fit and active person (or to someone on a bicycle) the Committee agreed that walking to a pharmacy in Plymstock was not reasonable as a general proposition for residents in some areas of Hooe. In coming to that conclusion the Committee took account of both the distance and the topography of Hooe and Plymstock.

5.33 The Committee did not accept as applicable the propositions contained in the papers that a foot-journey of 10 minutes or 400 – 800m the maximum was acceptable to access facilities in a neighbourhood (perhaps rising to a maximum of 1200m) or that 800m is a reasonable maximum distance to need to walk in an urban setting. The Committee did not have sight of the reports upon which the comments were based or the criteria on which the reports were based. One spoke of accessing neighbourhood facilities and the other appeared to relate to how far people walk in an urban environment. How far people walk in an urban environment or a town is not necessarily the same as considering how far someone may reasonably be expected to walk to access specific services such as a pharmacy in a semi-rural area such as Hooe.

5.34 There are several additional pharmacies located in Plymouth. These would of course be mainly accessible to people working in and regularly commuting to the city whether by car or public transport. The latter may include the ferry but the Committee did not regard that as reliable means to access pharmaceutical services. It was rightly conceded by Mr Daly that someone with access to a car had little difficulty in accessing a pharmacy by undertaking the short car-journey to Plymstock where they had plenty of choice in the four pharmacies there (with a 5th opening soon).

5.35 Having concluded that walking as a method of accessing pharmaceutical services is not reasonable for some persons in Hooe, the issue of access and choice required consideration of alternative methods of transport. This would involve consideration of bus-timetables, routes and matters such as deprivation to determine whether cost has an impact and if so whether it does in fact impact adversely upon people in the area.

5.36 Turning to the issue of deprivation, the applicant asserted that Hooe is a very deprived area and, as reported above, the Committee did see some areas of social housing that appeared to be rather run-down or dowdy. However, the Committee was mindful of the fact that evidence of deprivation does not of itself suggest that there is a lack of access and thus a lack of choice in accessing pharmaceutical services. The Committee noted that the Devon LPC had received no complaint regarding access or choice and no complaints were presented by the applicant. In addition the figures from the 2018 PNA, the Plymouth Sustainable Neighbourhoods study, the 2015 Index of Multiple Deprivation and an assessment of the free-school meal allowance for children at the primary school paint a picture of Hooe as improving in

prosperity and in relatively good health. Of course pockets of deprivation may remain within this overall picture.

5.37 The applicant has asserted that 15% of households do not have access to a car (NHS England suggest a similar figure of 16% from the 2011 census). The converse of this is that 84 - 85% of households do have access to a car. The applicant submitted that the bus-services available to residents or visitors to Hooe is limited and expensive. As to bus-times, the papers contained detailed timetables and routes. The No.7D bus serves the northeast and southeast quarters of Hooe and runs on an hourly basis from about 09.30 - 16.30 Monday to Friday. It passes close to three of the pharmacies in Plymstock. The No.2 bus runs right by the application site through the middle of Hooe, up to Turnchapel and beyond. It runs on a basis of 20 - 30 minutes between buses 05.30 – 23.30 Monday to Saturday and two buses per hour on Sundays from about 06.30 – 22.30. From this it would appear that there are two regular buses serving Hooe in the week and one regular service all weekend. There was no suggestion that either service is under threat. The papers give a price of £2.50 for a return ticket. Although the destination is not given the Committee assumes that is to one or other of the pharmacies in Plymstock. Those over 65 will of course be eligible for a free bus-pass.

5.38 Having considered all the papers and the oral representations the Committee was of the view that the majority of Hooe residents have access to a vehicle and enjoy reasonable access to pharmacies nearby. Those without a vehicle have one and in some cases two bus routes available to them during the week. These run from early morning to late at night and the No.2 runs seven days a week. The Committee considered this to be a good service. Whilst £2.50 may represent a substantial sum to some residents there was no evidence from which to conclude that this fettered their ability to access pharmaceutical services. Likewise there was no evidence that persons in Hooe had difficulty getting to a bus-stop and, were that to be the case it is unlikely they could reach the location either so it would not assist them. There were no complaints of difficulty in accessing pharmaceutical services either to the Devon PLC or to this Committee. In addition there was no evidence from which to infer any number of such persons assuming they exist nor as to what may cause their need to access pharmaceutical services. As such there was no evidence from which to conclude that granting the application would provide substantial benefit either in terms of numbers or alleviating or preventing illness or ailment.

5.39 Given its findings regarding ease of access to the pharmacies in Plymstock, the Committee was satisfied overall that residents of Hooe do have a reasonable choice in accessing the pharmaceutical services and that granting this application would not confer significant benefits to persons in the area.

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

5.41 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 application would confer significant benefits on persons

Regulation 18(2)(b)(ii) [Protected characteristics and difficulty]

5.42 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.

5.43 The Committee acknowledged and agreed with the general comment that the Equality Act and various principles of equality are intended to protect minorities not majorities. However, it noted that there was very limited evidence concerning residents in Hooe with protected characteristics. Reference was made to a nearby primary school, two care-homes and a hospice. There will of course be other children and elderly people living in Hooe. No protected characteristic other than age was raised.

5.44 The Committee determined that it is insufficient for an applicant to rely upon the simple fact that children or elderly residents live or attend school near to a location to meet this part of the regulation. Whilst it is tempting to argue that some youngsters or elderly people are prone to infection or ailment and therefore they need pharmaceutical services, that is not the test. Such persons will doubtless have general pharmaceutical needs to a greater or lesser degree but the test is whether they have difficulty in gaining “access to services that meet specific needs”. In addition, even if there is a defined group, a specific need/needs and difficulty in accessing pharmaceutical services to meet those needs, the Committee must be satisfied that any grant would secure significant benefits to people. This would require information as to what the specific needs are, how urgent they are, their impact upon patients and how many people may be affected.

5.45 Mr Daly rightly pointed out that the equality laws are there to meet the particular needs of minorities who may otherwise be overlooked or ignored. This part of the regulations is clearly intended to allow for consideration of the specific needs of a minority group as defined by a protected characteristic. It is however clear to the Committee that needs or numbers are factors in determining whether there will be significant benefits to persons. The Committee concluded that it is important to receive clear evidence of; the group relied upon as defined by the protected characteristic; how many people are in the group; the specific need(s) identified; the access difficulty they suffer and so forth.

5.46 Other than the passing reference to the school, two residential homes and a hospice there was no evidence regarding persons with protected characteristics. In addition, no evidence of specific needs was presented. To infer a need or needs exist would be little more than speculation. Even assuming that there were some specific needs, there was no evidence of difficulty accessing current pharmaceutical services to meet them. The Committee noted that the Devon LPC had received no complaints from residents of Hooe regarding difficulty in accessing services.

5.47 Whilst it is clear that parents with young children, or elderly residents, would be unlikely to walk into Plymstock for a prescription, there was nothing to suggest they would walk to the proposed location either. There was little if

anything to draw them to it and no support was presented from local residents or incomers suggesting a pharmacy would be of benefit. Assuming that elderly residents or parents of children could drive, there was nothing from which to infer they may be tempted to drive to the location rather than the established pharmacies a short distance away. The same may be said of people coming to the area by car. As noted previously, Mr Daly conceded that someone with access to a car had little difficulty in accessing a pharmacy (and plenty of choice) by undertaking the short car-journey to one of the four pharmacies in Plymstock.

5.48 As for public transport, similar considerations apply. Hooe is not a hub or destination location. If a bus-ride is expensive for someone it is perhaps more likely that that they will use their money wisely and combine travel to an area with more shops and services than Hooe has to offer. Whilst it may be that a bus fare is expensive for some residents, there was no evidence of any residents with protected characteristics and specific needs using the buses and finding it difficult or expensive so to do. Older residents would in any event be eligible for a bus-pass thereby mitigating the cost.

5.49 Finally, even if there were a group or groups with protected characteristics and specific needs and they experienced difficulty in accessing pharmaceutical services, with no idea as to what the needs are, how serious they might be, how they impact upon such persons their families or carers, there was no evidence from which to conclude that granting the application would result in significant benefits to them.

5.50 The Committee 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 are difficult for them to access, granting the application would confer significant benefits on persons.

Regulation 18(2)(b)(iii) [Innovation]

5.51 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.

5.52 The applicant did not raise any issues of innovation and none were apparent on the papers.

5.53 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 the application would confer significant benefits on persons

Regulation 18(2)(b) generally

5.54 The Committee observed that the regulation uses the term ‘persons in the area’. The implication of this is that it should consider persons beyond mere residents. Whilst there are some businesses in the area and some transient incomers such as tourists, schoolchildren and visitors to the care homes or

hospice, there was no evidence regarding such people save that the school had as little over 200 pupils. Notwithstanding the paucity of information the Committee considered the application and any significant benefits from the perspective of residents and people likely to be visiting Hooe for whatever reason.

5.55 The Committee noted that the applicant proposes to provide 42.5 core hours per week (9am – 5.30pm Monday – Friday). However, it also noted that several of the pharmacies in Plymstock exceed these hours, collectively providing seven day cover from 8am – 9pm over Monday – Saturday and 10am – 5pm on Sundays. Considering this, the Committee was of the view that there was no information provided to support a finding that pharmaceutical services are not currently provided at such times as needed and therefore it was not satisfied that, having regard to the desirability of there being a reasonable choice with regard to obtaining services, granting the application would confer significant benefits (in relation to opening hours) on persons.

5.56 The Committee noted Mr Daly’s suggestion that the issue of securing premises is not part of the test under Regulation 18. Whilst it is correct that premises are not explicitly mentioned, the Committee noted that Regulation 18 requires it to consider whether granting the application “would secure improvements, or better access”. There are time-limits within which an applicant is expected to identify premises within the scope of a best-estimate application and to start trading. A failure to meet these time-limits will result in the grant lapsing.

5.57 The Committee considered that if an applicant has no premises at the time the application comes before it and it is clear there is no prospect of obtaining premises within the time-limits then granting an application would not secure improvements or better access.

5.58 The Committee noted that there are really only four commercial units available at the location. They are currently occupied. This application therefore rested upon one of these premises becoming available, or a nearby house becoming vacant and an application for change of use being made through the local planning department.

5.59 The Committee had no information concerning the prospect of obtaining premises beyond the observations from its site-visit and the comment by Mr Daly. Given that it has refused the application on other grounds this point did not require determination.

Other considerations

5.60 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).

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

5.62 The Committee had regard to Regulation 18(2)(g) and found that it was no applicable.

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

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

5.65 In those circumstances the Committee determined to uphold the decision of NHS England.

5.66 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 re-determine the application.

5.67 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 application by NHS England. The Committee further noted that when the appeal was circulated representations had been sought from parties on Regulation 18.

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

6 DECISION

6.1 The Committee confirms the decision of NHS England.

6.2 The Committee has 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;

6.3 The Committee determined that the application should be refused on the following basis:

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

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

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

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

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

Jon Whitfield QC Committee Chair

A copy of this decision is being sent to:

Mr C Daly, Rushport Advisory LLP – Applicant Mr Nick Speight - NHS England Mrs S Taylor – Devon LPC Ms R Charlton – Boots UK Ltd Secretary - Devon LMC

Annex A

REF: SHA/19898

1 Trevelyan Square APPEAL AGAINST SOUTH WEST AREA TEAM, Boar Lane NHS COMMISSIONING BOARD ("NHS Leeds ENGLAND") DECISION TO REFUSE AN LS1 6AE APPLICATION BY RUSHPORT ADVISORY LLP FOR INCLUSION IN THE PHARMACEUTICAL LIST Tel: 0113 86 65500 Fax: 0207 821 0029 OFFERING UNFORESEEN BENEFITS UNDER Email: [email protected] REGULATION 18 WITHIN A 200M RADIUS OF THE JUNCTION OF HOOE ROAD AND BARTON ROAD, HOOE, PLYMOUTH, PL9 9RG.

1 The Application

By application dated 12 January 2018, Rushport Advisory LLP (“the Applicant”) applied to NHS Commissioning Board (“NHS England”) for inclusion in the pharmaceutical list offering unforeseen benefits under Regulation 18 within a 200m radius of the junction of Hooe Road and Barton Road, Hooe, Plymouth PL9 9RG. In support of the application it was stated:

1.1 In response to Part 5 of the application form, the Applicant stated: “No other pharmacy in same or adjacent premises so not applicable”

1.2 Hooe is a district of Plymouth which is joined and shares its facilities with Turnchapel to the west.

1.3 The area has a combined population of approximately 3,000 in 2011, but this will have increased following the completion of the 222 Barratt homes development opposite Hooe Lake.

1.4 Hooe has a range of facilities for local residents and visitors with sufficient provision for day to day needs to mean that there is no requirement for people to leave the area on a daily basis. One notable exception is the lack of healthcare provision in the area.

1.5 With neither a pharmacy or GP practice, patients have no option other than to travel over 1 mile to another part of Plymouth to access pharmaceutical services.

1.6 The PNA for Plymouth does not consider the benefits that would accrue from locating a pharmacy in Hooe and this application is therefore submitted under Regulation 18 as an unforeseen benefits application.

1.7 Given the not insignificant population in the area and the requirement for patients to leave the area in order to access any type of primary care services, including pharmaceutical services, granting the application would secure better access to pharmaceutical services for the relevant population.

1.8 In addition, those who are resident in Hooe or visiting the town have no reasonable choice or pharmacy provider. Whilst there are pharmacies located over a mile away, these cannot be considered as providing reasonable choice for those in Hooe.

1.9 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 parts of Plymouth such as the elderly, infirm, disabled or parents with young children (i.e. those who share a protected characteristic). Hooe primary school is located only 100 metres from the proposed site and in close proximity to other local services. The location of the pharmacy at this central site will secure better access to pharmaceutical services.

1.10 Whilst a previous application had been refused at appeal, the Applicant is asking that NHS England looks again at this area as it is clear that there are significant difficulties faced by local residents who are seeking to access pharmaceutical services. Granting the application would secure significant benefit by way of access to or choice of pharmaceutical services especially for those who rely on public transport or who would wish to walk to access services. This is due to the distance that patients have to travel to access pharmacies elsewhere and the significant gradients that act as a barrier to movement.

1.11 The applicant intends to provide the following services:

1.11.1 Essential services

1.11.2 Clinical governance

1.11.3 Appliances as listed in Part IX of the Drug Tariff

1.11.4 Advanced and Enhanced services as indicated on the application form.

1.11.5 The applicant also stated: “We intend to provide all commissioned services and will ensure that all pharmacists employed are accredited to provide these services. The premises will also be accredited. In addition 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 the provision of non commissioned services.”

1.12 The Applicant’s proposed core opening hours are:

1.12.1 Mon to Fri 9.00am to 5.30pm

1.12.2 Sat -

1.12.3 Sun -

1.13 The applicant’s proposed total opening hours are:

1.13.1 As above, but with the addition of Saturdays 9.00am to 5.00pm.

2 The Decision

NHS England considered and decided to refuse the application. The decision letter dated 3 May 2018 states:

Covering Letter from PCSE

2.1 NHS England has considered the application and is writing to confirm that it has been refused. Please see document detailing the refusal of the application.

Further Covering Letter from NHS England

2.2 The application was considered by NHS England’s South West Pharmaceutical Services Regulations Committee on 20 April 2018 and was refused. In making that decision the Committee noted that the Applicant had not made any observations in response to interested parties’ representations, or any comments on the applicability of the 2018 PNA.

2.3 On 24 April 2018 PCSE and NHS England were made aware that the Applicant had been suffering email problems and might not have received the requests to comment on the representations and the PNA. PCSE, on behalf of NHS England, therefore sought clarification from the Applicant as to whether those requests had been received, and providing the Applicant with further time to comment if they had not (following which the application would have been reconsidered by NHS England at its May meeting).

2.4 However Conor Daly of the applicant has, on 1 May 2018, confirmed as follows: “I did receive both of these but had no comment to make on either and do not therefore require any further time.”

2.5 Accordingly, NHS England’s decision to refuse the application, made on 20 April 2018, stands.

Decision Report

2.6 The application was considered by NHS England’s South West Pharmaceutical Services Regulations Committee on 20 April 2018 and was refused.

Introduction

2.7 NHS England noted that the best estimate location of “within a 200m radius of the junction of Hooe Road and Barton Road” is in the Hooe area, at the western end of Plymstock, Plymouth.

2.8 It noted that the same applicant had submitted an application for this location in 2016, which was refused by NHS England in March 2017 and on appeal in June 2017 (SHA/18650).

2.9 It was noted that the principal differences between the previous application and the current one were:

2.9.1 the addition of supplementary opening hours from 9am-5pm on Saturdays,

2.9.2 the following additional statement in support of the application:

2.9.2.1 Whilst a previous application had been refused at appeal, the applicant is asking that NHS England looks again at this area as it is clear that there are significant difficulties faced by local residents who are seeking to access pharmaceutical services. Granting the application would secure significant benefit by way of access to or choice of pharmaceutical services especially for those who rely on public transport or who would wish to walk to access services. This is due to the distance that patients have to travel to access pharmacies elsewhere and the significant gradients that act as a barrier to movement.

Regulation 31 (same or adjacent premises)

2.10 NHS England noted that there are not any pharmacies currently located within the best estimate location, so Regulation 31 did not require the application to be refused. If the application is granted then, when the applicant notifies NHS England of the exact address, that notification will not be valid if, had that address been included in the original application, Regulation 31 would have applied (paragraph 31(3A) of Schedule 2).

Controlled locality status

2.11 It was noted that the application does not relate to a controlled locality but is within 1.6km of a controlled location; if it is granted 7 patients would lose dispensing rights.

Public involvement and oral hearing

2.12 Members were advised that details of the application had been sent to, and comments invited from, Plymouth and Devon Healthwatches, three GP surgeries and their patient groups (Dean Cross Surgery, Barton Surgery and Church View Surgery), and six Plymouth City Councillors representing the area. No responses were received from any of these parties.

2.13 NHS England decided that it was not necessary to hold an oral hearing to determine the application.

Representations received

2.14 Representations opposing the application had been received from Boots and Morrisons Pharmacies, and Devon LPC, which in summary were as follows.

2.15 Boots stated:

2.16 The Applicant has provided no evidence that patients (generally or with a specific protected characteristic) are experiencing significant difficulty when wishing to access services.

2.17 Neither the 2015 or draft 2018 PNAs mentioned any requirement for pharmaceutical provision in Hooe or the surrounding area.

2.18 Morrisons stated:

2.18.1 Local choice is maintained by numerous pharmacies located within 1 mile which are served by public transport.

2.18.2 Morrisons pharmacy is open longer hours and is HLP registered.

2.18.3 The Applicant has not provided any evidence of patient groups having difficulty accessing the existing pharmacies.

2.19 The LPC stated:

2.19.1 Plymstock has the second highest proportion of car ownership in Plymouth and the majority of the population can access a pharmacy by car in 5 minutes.

2.19.2 Plymstock is one of the least deprived localities in Plymouth.

2.19.3 The nearest pharmacy is 0.9 miles from Hooe. The four existing pharmacies are accessing by public transport with regular buses running from Hooe to the centre of Plymstock.

2.19.4 There is no evidence that the local population is experiencing any difficulties in accessing pharmaceutical services.

2.19.5 The opening hours offered do not extend beyond 5.30pm on weekdays; the supplementary hours offered on Saturdays could be reduced in the future.

2.19.6 It was noted that the Applicant had not submitted any representations in response.

Unforeseen Benefits 23

Reg 18(1)(b) – Improvements or better access not included in the Pharmaceutical Needs Assessment (PNA)

2.20 NHS England noted that, at the time that this application was submitted, the 2015 Plymouth PNA was still in force. However a new Plymouth PNA was approved by Plymouth Health & Wellbeing Board on 22 March 2018. Extracts from both PNAs were available to NHS England.

2.21 It was noted that the 2015 Plymouth PNA assessment of provision in the Plymstock Community Network Area (which includes Hooe) states that between the 4 pharmacies included in the network area there is pharmaceutical provision available 7 days per week, 8am-9pm Monday- Saturday, and 10am-5pm Sundays. It does not identify any gaps in provision. It does note the population within the area is increasing, with the largest increase predicted to be in those 75 years+ and this may impact of pharmaceutical need in the future.

2.22 The 2015 PNA also notes that the existing pharmacies are clustered in the centre of the Plymstock locality but states that all would be accessible within a 15 minute drive from any given location in Plymstock.

2.23 NHS England noted that, under the 2018 Plymouth PNA, Plymstock (and therefore Hooe) falls within the Plymouth East locality. The 2018 PNA notes that services are available 7 days per week; 8am-9pm Monday-Saturday, and 10am-5pm Sundays, and that all pharmacies are accessible by public transport.

2.24 The 2018 PNA refers to the gap identified at the eastern end of Plymstock (i.e. the opposite end from Hooe) through Ascent Healthcare’s application for the Elburton area, which will be met when Ascent’s pharmacy opens. It also refers to a future need in the Plymstock Quarry area (which is to the north of Plymstock, on the far side of Plymstock from Hooe). The 2018 PNA does not identify any other gaps.

2.25 It was noted that, under Regulation 22(2), the relevant PNA is that in force at the time that the application is decided, unless the only way to determine the application justly is with reference to an earlier PNA.

2.26 Members were informed that the applicant and interested parties were notified on 4 April 2018 of the approval of the 2018 PNA by Plymouth Health & Wellbeing Board and given until 12 noon on 18 April 2018 to make any representations regarding the applicability of the 2018 PNA to the application. No such representations had been received.

2.27 NHS England considered that there was no reason not to apply the 2018 PNA to this application.

2.28 NHS England further concluded that, as the improvements or better access being offered by the applicants were not benefits which were foreseen in the 2018 PNA, ‘unforeseen benefits’ is the correct type of application.

Reg 18(2)(g) – Whether the application presupposes that a gap in pharmaceutical services provision has been or is to be created as a result of a consolidation application

2.29 As no consolidation applications had been made relating to Plymouth, NHS England was not required to refuse the application under regulation 18(2)(g).

Reg 18(2)(a) – Whether granting the application would cause significant detriment to the proper planning or arrangements in place for provision of pharmaceutical services in this area

2.30 It was noted that NHS England has no particular plans regarding pharmaceutical services in this part of Plymstock, so there can be no detriment to such plans. There has not been any suggestion that there would be significant detriment to the arrangements already in place. Therefore NHS England was satisfied that it was not necessary to refuse the application under regulation 18(2)(a).

Reg 18(2)(b)(i) – Significant benefit: Access and choice

Proposed location

2.31 NHS England was satisfied that Hooe should be considered to be part of Plymstock, rather than being a distinct settlement. It noted that the proposed location has a very limited range of amenities: two convenience stores, two takeaways, a café and a car retailer (it was also noted that a post office had been located in one of the convenience stores until closure about 2 months ago). There is a primary school for about 200 pupils nearby.

2.32 It was noted that there is unrestricted on-road parking available on Barton Road and a small car park which can accommodate 12+ cars is provided behind the units which house the majority of the businesses previously mentioned.

2.33 It was noted that there is some social housing located within Hooe, and that the medical practices covering Hooe are located close to the central area of Plymstock.

Existing pharmacies

2.34 NHS England noted the distances from the proposed location to the existing pharmacies in Plymstock as follows;

Pharmacy Distance from Hooe

Straight line Walking

Well Pharmacy, Radford Park Road, PL9 9DH 0.9 miles 1.17 miles

Morrison’s Pharmacy 1.0 miles 1.91 miles 5 Pomphlett Road PL9 7BH

Boots Pharmacy 1.1 miles 1.61 miles 20 The Broadway PL9 7AU

Church Road Pharmacy 1.2.miles 1.57 miles

91 Church Road PL9 9AX

On Foot

2.35 It was noted that the best estimate location is at a relatively low altitude while there are areas of both high and low altitude between Hooe and the centre of Plymstock, resulting in gradients on the routes between the proposed location and the existing pharmacies.

2.36 A site visit had been undertaken in respect of the previous application and all pharmacies, with the exception of Morrisons, were visited on foot. The routes noted were as follows:

Well, Radford Park Road – 1.1 miles, 20 minutes

2.37 Travel east along Hooe Road, this section is initially lined by retail units and then residential properties. The pavement on the right stops after the junction with Hooe Hill before beginning again after South Hill. There is an uphill gradient (4.4%). This changes to downhill after Belle Vue Road (5.1%).

2.38 Cross the roundabout and continue along Hooe Road, crossing a second mini roundabout staying on Hooe Road which has a steep uphill gradient at this point (8.6%).

2.39 At the end of the road turn left on to Radford Park Road which starts as a fairly flat and slightly downhill route before becoming a gentle uphill gradient.

2.40 Well can be found on the left in a small terrace of retail units.

Boots, The Broadway – 1.6 miles, 22 minutes

2.41 Follow the route for Well above until the Radford Park Road junction. At this point take the slight right on to Underlane. There is a steep uphill gradient (9.7%).

2.42 Take the first left on to Mountbatten Way, again an uphill gradient (4.9%) along residential roads. The gradient changes to downhill (3.5%) part way along this section.

2.43 At the end of Mountbatten Way The Broadway pedestrian shopping precinct housing Boots can be found directly opposite, there is a pedestrian crossing available.

Church Road Pharmacy – 1.6 miles, 25 minutes

2.44 Follow the route as described for Boots above but continue along Underlane until the left hand junction for Lippell Drive then immediately right on to Burrow Hill.

2.45 The pavements stop on both sides part way along the route when the road becomes a very narrow lane with high hedgerows on both sides and no street lighting. There is a steep uphill gradient (6.5%) followed by an equally steep descent (6.9%).

2.46 At the end of the road cross and take the road opposite, Church Road which has pavements to the right only, which then stop as you pass through the bollards and the road narrows.

2.47 Follow Church Road downhill (4.9%) towards the Church, the pharmacy can be found on your right as the road levels out.

2.48 Morrisons Pomphlett Road – 1.9 miles ,35 minutes (this is not the shortest route but avoids the need to use the unclassified coastal path; details ascertained from Google Streetview)

2.49 Follow the route for Well above along Radford Road Radford Park Road until you reach the left hand turning for Dean Park Road which has an uphill gradient (3.2%).

2.50 At the bollards at the end of the road cross and proceed directly down Randwick Park Road before turning left in to Foresters Road which continues on to Pomphlett Close before becoming Pomphlett Gardens. This section has a downhill gradient (3%).

2.51 Turn left on to Pomphlett Road, there is a pedestrian crossing just to the right of this junction. Proceed North until reaching the round-a-bout.

2.52 Turn right, passing MacDonald’s where Morrisons can be found on the right.

By car

2.53 NHS England noted that, according to the 2011 census, there is a relatively high level of car ownership in Plymstock (15-16% of households do not have access to a car).

2.54 It also noted that there are car parking facilities in close proximity to the existing pharmacies. Directly outside Well there is limited off-street parking, plus some on-road parking (2 hour maximum). There is also parking outside Church Road Pharmacy (no restrictions). There is a large free car park at Morrisons, and Plymstock Broadway has a car park which is pay and display but short stay is free for up to 2 hours.

Public transport

2.55 NHS England noted from timetables and route maps that there are two bus services serving stops close to the proposed location which would pass close to existing pharmacies:

2.55.1 Stagecoach service 2 (every 10-30 minutes) – stops close to Boots, within a 3 minute walk of Well and at Morrisons

2.55.2 Target Travel service 7D (hourly) – serves Morrisons, Church Road, Boots and within a 3 minute walk of Well.

Conclusion regarding access and choice

2.56 NHS England was of the view that the facilities available in Hooe will not be sufficient to meet patients’ general day-to-day needs and that patients will definitely need to travel outside the immediate vicinity for many things, for

example to the main retail area of Plymstock, The Broadway, which is located in close proximity to the existing pharmacies. Patients are also already travelling out of Hooe to access GP services.

2.57 NHS England accepted that the existing pharmacies are at least 1 mile from the proposed location, with some hilly sections to navigate which could mean that these routes pose problems for the elderly or disabled if accessing on foot. However NHS England was of the view that difficulties of access on foot did not of itself indicate that there was not a reasonable choice in obtaining pharmaceutical services.

2.58 NHS England considered that the level of car ownership and the availability of parking at the existing pharmacies indicated that patients who have access to private transport would not have difficulties accessing the existing pharmaceutical provision in the area.

2.59 Regarding public transport, NHS England considered that the bus services, in particular the Stagecoach service 2, provide frequent access by bus to several of the existing pharmacies.

2.60 NHS England considered the relevance of the cost of a bus journey to whether the existing pharmacies were accessible. It noted that in the June 2017 appeal decision (SHA/18650 at paragraph 6.31) the Appeal Committee had said that it “saw no information to suggest that the cost was such that in this particular area the bus service does not provide a reasonable alternative to walking or private transport”. NHS England noted that the applicant had not provided any information as part of the current applicant to support a different conclusion.

2.61 NHS England noted the social housing located in Hooe. However it was mindful that deprivation of itself did not necessarily result in difficulties in obtaining pharmaceutical services. NHS England noted that no information had been provided – beyond the applicant’s statement (quoted in paragraph 3 above), which was unsupported by evidence – to show that those living in Hooe were currently experiencing any difficulties in accessing pharmaceutical services.

2.62 Therefore, due to the accessibility of the existing pharmacies by car or by bus, NHS England concluded that granting the application would not confer a significant benefit by way of access to, or choice of, pharmaceutical services.

Reg 18(2)(b)(ii) – Significant Benefit: Patients with a protected characteristic

2.63 It was noted that the application makes only a passing references to the needs of elderly or infirm patients or parents with young children, and no evidence of specific difficulty in accessing services at present had been provided. In the absence of evidence, NHS England concluded that granting the application would not confer significant benefits on people sharing a protected characteristic.

Reg 18(2)(b)(iii) – Significant Benefit: Innovative approaches to delivery of pharmaceutical services

2.64 It was noted that the Applicant had not sought to argue that their application would bring any innovative approaches in the delivery of pharmaceutical

services. Therefore NHS England was not satisfied that granting the application would lead to any significant benefits by virtue of innovation.

Reg18(2)(b) generally – Significant Benefit: Opening Hours

2.65 (Table listing the opening hours of Boots, Morrisons, Church Road and Well Pharmacies provided).

2.66 NHS England noted that the current opening hours of the four pharmacies in Plymstock provide access to services between 8am-9pm Monday-Saturday (8.45am-6.30pm Monday-Friday, and 9am-3pm on Saturdays, if only core hours are considered). On Sundays Boots are open 10am-4pm and Morrisons 11am-5pm (both as supplementary hours).

2.67 It was noted that the Applicant was proposing to open 9am-5.30pm Monday- Friday (all core hours) with supplementary hours from 9am-5pm on Saturdays (closed on Sundays). NHS England was mindful that supplementary hours could be changed or withdrawn on 3 months’ notice and so could not be relied upon in the long-term.

2.68 Due to the arrangement of opening hours being offered, NHS England was of the view that application would not increase access to pharmaceutical services in the evenings or at weekends, and so granting the application would not confer a significant benefit in terms of opening hours for pharmaceutical provision in the area

Outcome

2.69 Overall, therefore, NHS England refused the application because no significant benefit would result from granting it.

3 The Appeal

In a covering email dated 11 May 2018, the Applicant appealed against NHS England's decision. The grounds of appeal as contained within an enclosed report are:

Introduction

3.1 This Report considers the issues raised by the application by Rushport Advisory LLP for an application for inclusion in the pharmaceutical list for premises within 200m radius of Hooe Road and Barton Road, Hooe, Plymouth PL9 9RG.

3.2 The application is made under Regulation 18, unforeseen benefits.

3.3 The Report is submitted on behalf of Rushport Advisory Ltd, the Applicant.

The Case for Reassessment

3.4 This application comes back before NHS Resolution only a year since a previous decision to refuse was issued under decision SHA/18650. There has been new evidence that the applicant has become aware of that has a material bearing on the Case. Unbeknownst to the Applicant during the

processing of the previous application, NHS England South West Case Officer recommended approval of this application. This information was not provided to the Applicant or to NHS Resolution and only came to light during an oral hearing in relation to another application in the area where the same Case Officer had recommended refusal, but which was approved at appeal (Elburton SHA/18654) and it would have been an important acknowledgement and support for the application.

3.5 Anyone that understands the geography and layout of Hooe and the separate area of Plymstock would concur with the view that the two areas are separate communities.

3.6 It was only NHS England’s objection and opposition towards the original proposal that has resulted in the community of Hooe not yet having a pharmacy to provide for their local pharmaceutical needs. Indeed, NHS England’s aggressive opposition to this case and failure to disclose the clearly material information contained in the Case Officer’s recommendation has, in the Applicant’s view, unfairly influenced NHS England. Transparent decision making must require NHS England to be forthcoming with the advice of its officers.

3.7 It is notable that the undated decision report from NHS England in the current application which was received on 3 May 2018, again references the previous Case Officer’s report and again fails to disclose that the Case Officer who had the benefit of visiting the site recommended approval of the application.

3.8 A copy of the NHS England – South-West Pharmaceutical Services Regulation Committee minutes - February 2017 are at Appendix 1. This clear shows that:

3.8.1 Para 23. The 2015 Plymouth PNA assessment “does note the population within Plymouth is increasing, with the largest increase predicted to be those 75+years and this may impact on pharmaceutical need in the future”;

3.8.2 Para 41. “It was noted on site visit that there appears to be a significant proportion of social housing located in Hooe.”

3.8.3 Para 42. “there are several business including a post office, 2 convenience stores, 2 take aways, café and car retailers. There is unrestricted on road parking available opposite along Barton Road and a small car park which can accommodate 12+ cars is provided behind the units which house the majority of the businesses previously mentioned”;

3.8.4 Para 43. “There are 13 pharmacies within 2 miles of the proposed location of the Rushport application. However, all but 4 of the pharmacies lie on the other side of the Tamar River and are not within the Plymstock locality” [emphasis added];

3.8.5 Para 49. The topography maps “show that the area is at a relatively high altitude with noticeable variations in gradient on the routes between the proposed locations and the existing pharmacies”;

3.8.6 Para 54. “Any patients using public transport living in Hooe have 2 services which would pass close to existing pharmacies: Stagecoach (2 every 10-13 minutes) and Target Travel (7D hourly)”.

3.8.7 Para 57. “There are car parking facilities in close proximity to the existing pharmacies, this includes limited off street parking directly outside Well, the on road parking below is no longer available. There is on road parking on the opposite side of Radford Park Road (2 hour max) and TCE O’Gallaghers (no restrictions) ... There is a large free car park at Morrison’s and Plymstock Broadway has a car park which is pay and display but short stay is free for up to 2 hours”

3.8.8 Para 58. The routes to existing pharmacies are at least 1 mile … with some hilly sections to navigate if walking, more noticeably from Hooe … the gradients could mean that these route pose problems for the elderly or disabled if accessing on foot, especially from Hooe.

3.8.9 Para 60. “The journey on foot from Hooe could prove difficult for patients due to the significant gradient on the routes to all the current providers. Access by bus is possible although there is not as wide a range of services available”.

3.8.10 Para 61. “It is however recommended that granting the Rushport application would confer significant benefit by way of access to, or choice of, pharmaceutical services”.

3.9 When one in turn considers the decision of NHS England, it can be seen that NHS England found that it would be unreasonable to expect residents to walk to Plymstock to pharmacies. However, NHS England found (para 6.29) that access on foot did not indicate that there was not a reasonable choice in obtaining pharmaceutical services. However, what is concerning is that the quote made by NHS England of the views of its site visit is taken from the same minutes discussed above (para 58). The quote from NHS England is provided in the context where the same page of the very same report 3 paragraphs later recommends approval.

3.10 NHS England has followed the same process in the current case and again refused the application.

3.11 The repeat the minutes of NHS England and identify the same two bus services (service 2 and 7D) that link Hooe to Plymstock. There is no dispute over the existence of the services. However, very clearly any reasonable understanding of the routes of these service would demonstrate that only one service (route 2) cuts through Hooe. The 7D service only serves the eastern Hooe area. NHS England’s Case Officer was very clear that the range of services was not as wide a range of services as might be expected. NHS England’s finding that a single bus service meets the needs of the population of Hooe and that there is no evidence from the applicant that people using public transport experienced difficulties, is a very narrow position to adopt, when NHS England will have been fully aware that the applicant’s position on the inadequacy of bus routes was indeed supported by the NHS England Case Officer. The fact that the bus route is located half way up a steep hill means that it must be challenging for some groups of residents to use.

3.12 The topographical nature of Hooe is that it sits on a hillside. The northern edge of Hooe is Hooe Lake where Barton Roads is at 3ft above sea level while the top of Belle Vue Rise (note the name!) sits at 200ft above sea level!

3.13 Photograph provided – View from top of Belle View Rise.

3.14 Hooe Road which bisects the village sits between 33ft and 105 ft above sea level. In itself to walk along Hooe Road is a hilly walk. However, to access a bus from either the north which would require a steep walk up hill) or the south (which requires a very steep downhill walk) would be very challenging. It is uncontroversial, and merely a statement of fact that Hooe is a challenging place to live for those that are elderly and have walking and mobility issues.

3.15 NHS England is aware of the clear deprivation evidence and now contend that deprivation ‘of itself’ does not necessarily result in difficulties in obtaining pharmaceutical services. NHS Resolution is asked to note that NHS England is now simply quoting from their previous decision even though it is now clear that NHS England did not provide the relevant material to NHS Resolution that it would have required to make a fair determination. NHS England then states that no information had been provided to show that those living in Hooe were currently experiencing any difficulties in accessing pharmaceutical services. This is plainly not correct. NHS England has the views of its Case Officer that the considered there to be difficulties. It had the views of the Applicant. It has simply ignored any view that supported the application.

3.16 Moreover, NHS England found that:-

3.16.1 “Difficulties of access on foot did not of itself indicate there was not a reasonable choice” (para 6.29 previous refusal); AND

3.16.2 “Deprivation of itself did not necessarily result in difficulties in obtaining pharmaceutical services” (para 35 recent undated refusal). [emphasis added]

3.17 NHS England has clearly failed to note that distance and deprivation cumulatively must point towards unreasonable choice and difficulty in accessing services. NHS England failed to consider this case in the round. The Committee if it had been in any doubt in this regard, should have held an oral hearing.

3.18 NHS England’s position in refusing the application is untenable and can be summed up as follows:

3.18.1 The application was recommended for approval by the NHS Case Officer because is too far to walk for residents to access a pharmacy but that is not enough to allow the application;

3.18.2 There is only one bus route that is hard to access for many people, which NHS England Case Officer considered to be limited, but that is not enough to allow the application;

3.18.3 The area is clearly deprived but that is not enough to allow the application;

3.18.4 There has been significant house building in the area, boosting an already substantial population but that is not sufficient to allow the application;

3.18.5 There are a significant number of day to day facilities meeting the needs of a relatively isolated area, but that is not enough to allow the application.

3.18.6 Neither individually or any combination of the above significant material factors lead to conclusion that NHSE should allow the application.

3.19 That is simply irrational in any objective assessment of the evidence.

3.20 The only matter in favour of refusal in the NHS England decision is that people with access to a private car can access a pharmacy in Plymstock over a mile away in a different area using a single road access that is a life line to this community. NHS England has wholly failed to have regard to the needs of all sections of the community in Hooe.

3.21 There is an obligation to consider the needs of all those who use pharmaceutical services. Hooe is a distinct community and a site visit would make it abundantly clear that a pharmacy would be a significant benefit to those who share a protected characteristic and live in Hooe. Indeed, it appears that the only people to have conducted such a site visit, i.e. the NHS England Case Officer and the Applicant, actually agree on this point. It is only those that have never been to Hooe that seem to believe that a pharmacy is not required there.

3.22 The Applicant has a legitimate expectation that NHS England will treat an application on its merits and that where there is any doubt the balance must favour the Applicant. To have refused this application when faced with compelling evidence to the contrary, and without the benefit of a site visit indicates that the Applicant has not had a fair hearing in this case.

3.23 It is only right and proper that the Applicant reapply, and seek at the very least an oral hearing and site visit to ensure the individual and cumulative merits of this case are presented an considered fully.

3.24 The Applicant would hope that NHS Resolution would accept that it is possible for mistakes to be made in its decisions, especially when NHS England does not disclose that they ignored a recommendation that the application be approved. The case for a reassessment is compelling.

The Tests

3.25 There is not likely to be any objection in this case on the basis of the following:

3.25.1 i. the Pharmaceutical Needs Assessment for Plymouth HWB had not included the improvements and better access that a proposal at Hooe would offer (Regulation 18(1));

3.25.2 ii. there is no significant detriment to the proper planning of pharmaceutical services that would result from grant of the application (Regulation 18(2)(a)(i));

3.25.3 iii. there is no significant detriment to the arrangements currently in place for the provision of pharmaceutical services (Regulation 18(2)(a)(ii));

3.26 The crux of this application is therefore the tests set out in regulation 18(2)(b)(i) to (iii) being:

3.26.1 i. the desirability of providing reasonable choice;

3.26.2 ii. the desirability of ensuring people that share protected characteristics have access to pharmaceutical services specific to their needs; and

3.26.3 iii. the desirability of providing innovative approaches to deliver pharmaceutical services.

3.27 Inevitably, the focus in pharmaceutical cases is on reasonable choice and people that share protected characteristics. Innovation is not often a subject of significant debate in applications for unforeseen benefits and it is not advanced as an argument in this application.

The Proposal and the Surrounding Area

General Location

3.28 The proposal site is located within the Hooe Road/Barton Road area of Hooe. It is about 5 miles south of Plymouth and about 1.2 miles east of Plymstock. Its coastal location means all urban development is located north of the area, which is accessed via a circuitous route east and then north given the meandering coast line which cuts Hooe off from Plymouth to the north.

The Proposal Site

3.29 This is an important location on the western end of Hooe in that is provides good accessibility to the existing population of the area being the location of many existing local facilities and is also in close proximity to the main area of housing growth located north along the coast. It is also well located to improve access to residents of Turnchapel. The proposal will more than half the distance to a pharmacy for the residents of Turnchapel.

The Proposal

3.30 The proposal is set out in the application forms. The proposal site has not yet been secured.

3.31 Once secured they will be registered with the GPhC and will comply with all relevant legal and ethical requirements for the operation of a retail pharmacy business.

Surrounding Area

3.32 The area in which the proposal is located has a broad mix of facilities including the local shops, supermarket, services, hot food takeaways, primary school, pre-school, holiday accommodation (guest houses, self-catering etc.), public houses, car showrooms, places of worship, allotments, marinas, cafes and other places of employment. The area has all the daily services that any neighbourhood or community needs. However, it does not have any health care facilities. This is a telling omission given the degree of residents in the area, the increasing population and the attraction of the area to a large resorting population, many arriving into the area by boat.

3.33 The proposal is well placed to provide health care and pharmaceutical services to this mixed community.

Material Factors in Support of the Proposal

Hooe

3.34 The factors that support this application are:

3.34.1 The Isolated and Inaccessible Nature of Hooe

3.34.2 The Difficult Topography of Hooe

3.34.3 The Deprived Nature of Hooe

3.34.4 The Scale of Demand and Growth of Hooe

3.34.5 The Absence of Health Care in Hooe.

The Isolated and Inaccessible Nature of Hooe

3.35 The recent and undated decision of NHS England states:

3.35.1 “The Committee was satisfied that Hooe should be considered to be part of Plymstock, rather than being a distinct settlement..”

3.36 Hooe (and the area of Turnchapel to the northwest) is a district of Plymouth. It is a geographically isolated area to the south of Plymouth, bounded to the north by Hooe Lake, the west by the sea, the south by hilly countryside and to the east by Radford Woods Local Nature Reserve. It is a self-contained area, with one road in and out.

3.37 It is accepted by all parties involved in this case that it is not reasonable to expect patients to walk from Hooe to Plymstock. That reinforces the sense of isolation.

3.38 Hooe has a single road link to Plymstock to the east via Hooe Road. Plymstock is over 1.2 miles from the application site. It is over 2 miles from the Turnchapel area. The single road between Hooe and Plymstock is a ‘lifeline’ to health services. There is no alternative traffic route to reach health care should the Hooe Road be unusable for any reason. If the Hooe Road became impassable, due to accident poor weather conditions or road works, the entire population Hooe and Turnchapel would be effectively cut off from

its health services. Narrow rural country roads to the south of Hooe do not offer a realistic alternative due to their winding routes, and people would be unfamiliar of their existence and where they would lead to.

3.39 The sense of isolation is further illustrated by the inadequate bus service in Hooe. Two routes travel to Hooe. Both use the Hooe Road to access the area (and as such if there are traffic problems, both are effected). Service 2/2A runs through the centre of Hooe but does not provide access to the residential streets to the north and south of the area. It is the only service that runs as far as Turnchapel. Service 7D does not serve the west of Hooe. It serves only the east area of Hooe and does not provide any service towards Turnchapel. These services are inadequate to give any sense of connection to Plymstock or any urban area beyond. The infrequent services of the buses adds to the inadequacy of public transport.

3.40 People going about their daily lives of taking children to school, meeting friends, shopping, having a drink and a meal, going to work or going for a walk, should not have to leave their local community to travel to a completely separate community to access health care.

3.41 NHS England’s latest report states;

3.41.1 30. The Committee was of the view that the facilities available in Hooe will not be sufficient to meet patients’ general day-to-day needs and that patients will definitely need to travel outside the immediate vicinity for many things, for example to the main retail area of Plymstock, The Broadway, which is located in close proximity to the existing pharmacies. Patients are also already travelling out of Hooe to access GP services.

3.42 Provision of a pharmacy in Hooe will provide the community with an important service that simply cannot be accessed reasonably at present. One of the services that is clearly not “sufficient” is the provision of healthcare and in particular, pharmaceutical services. People can carry out all normal day to day activities in Hooe, but cannot access a pharmacy. The Applicant entirely agrees that people would have to travel outside the village for “many things” but to use this as a reason to refuse an application is entirely unjustified as patients can also remain in Hooe on a day to day basis without having to travel outside it at all.

The Difficult Topography

3.43 Hooe and Turnchapel have a combined population of about 4500. It is attractive as it has a sea front and river lake frontage, and a marina for small boats and cruisers to berth. The growth of Hooe has taken place on the steep banks of the hills to the south as can be seen below.

3.44 Photograph provided – View of Hooe extending up the hillsides to the south.

3.45 As explained above the topographical nature of Hooe is that it sits on a hillside. The northern edge of Hooe where Barton Roads is at 3ft above sea level while the top of Belle Vue Rise (note the name!) sits at 200ft above sea level. Hooe Road which bisects the village sits between 33ft and 105 ft above sea level. In itself to walk along Hooe Road is a hilly walk. The difficult topography around the Hooe area means any members of the population that

have mobility difficulty or are elderly or travelling with young children will find accessing bus routes or walking toward Plymstock difficult and prohibitive to getting their health needs met.

3.46 The location of the proposal site is in the hub of the community, where many people are already resorting to with their children to school, to church and to the local shops. It means that health care will be provided along the patterns of movement that the Hooe population take in their daily lives and removes the requirement to make a 2.4mile round trip out of the area to access basic health services.

The Deprived Nature of Hooe

3.47 It has been accepted in the earlier application that Hooe is deprived. NHS England agreed that a significant proportion of Hooe is social housing. Much of that social housing is located east of the application site. It has been established that Hooe is within the 50% most deprived neighbourhoods in the country; and in the 40% most deprived in terms of employment, and the 30% most deprived in terms of disability and over 20% of the population describe themselves as having their activities limited daily. 15% of the population (about 675 people) have no access to a car.

3.48 As stated above the previous NHS England Committee found Hooe deprived but that this itself was not sufficient to warrant a pharmacy, however we say that deprivation combined with the inaccessibility of Hooe does make a pharmacy necessary to ensure the population have reasonable access to health services.

The Scale of Demand and Growth of Hooe

3.49 Hooe is an established community. It has a population of about 4,500. That is the size of a market town in England and there would be many examples of towns of similar size having a pharmacy. The growth of the area has been boosted by the development of 200 new homes at Barton Road. That increased the population by 500 people. Many of these people will be young families and others will be retirement couples. Both families and the elderly are key groups that need health care in accessible locations close to their homes.

3.50 In addition to the resident population, Hooe is a harbour and tourist area, and many people will be in the area on holiday staying overnight and many have a requirement for health care. The proposal is well placed to meet any urgent health care needs of these resorting populations.

3.51 It is difficult to estimate transient populations, but it would not be unreasonable to assume that the population of Hooe could be boosted by an influx of perhaps 1000 tourists during busy summer months. A population of circa 5,500 is the average population that a pharmacy serves in England and the level of population in the area would clearly be of a scale to support a pharmacy.

The Absence of Health Care in Hooe

3.52 Hooe has no GP service and as such a pharmacy would provide an important location for immediate health care in times of emergency, and indeed to deal with day to day minor ailments.

3.53 The absence of a GP is a significant positive consideration in support of this proposal.

Reasonable Choice

3.54 Given the foregoing, the question of reasonable choice must be addressed by the fact that 4500-5500 people live in an area where they have no health care at present Their only choice is to drive along the Hooe Road to Plymstock to seek out a pharmacy in a different suburb of Plymouth. If anything happened to that single access route the entire population will be cut off from any and all forms of health care.

3.55 It serves no purpose to assess the availability of pharmacy services in Plymstock. These pharmacies are largely irrelevant in this case given the loss of the lifeline that is Hooe Road at any point would make all pharmacies unavailable. The Applicant would accept that people in Plymstock have access to a range of pharmacy providers, but this application is not for Plymstock.

3.56 The residents of Hooe have no reasonable choice as they have no pharmacy in their community, have no choice of route to alternatives pharmacies. For most they have no choice of transport, with only one bus route serving the west area of Hooe and Turnchapel.

3.57 The only option they have is to make a 2.4 mile round trip away from the homes, families, schools and services to another area to find a pharmacy. That is not reasonable choice.

Protected Characteristics

3.58 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.

3.59 The main users of primary health care services, including the GP surgery and pharmacy services, are within the groups above who share a protected characteristic. These also tend to be the groups that have the least access to their own private transport and who find using bus services more difficult, i.e. due to age, infirmity, disability or having to also push a pram/carry young children. The proposal will be a significant benefit to the community of Hooe and Turnchapel area and to those protected characteristic groups that have no health care support in this part of the Plymouth at present.

Conclusion

3.60 Given the forgoing it is respectfully concluded that the proposal will have unforeseen benefits for the population of Hooe, especially those living in the western half of Hooe and Turnchapel.

3.61 The application should be allowed.

3.62 Attached to the appeal were the following documents:

3.62.1 Copy of NHS England’s decision letter

3.62.2 A map

3.62.3 Ariel view of Hooe

3.62.4 Photograph – Typical steep gradients leaving Hooe that must be navigated to access a pharmacy

3.62.5 Photograph – Large social housing estate at Stamford Close.

3.62.6 Photographs X2 – New housing off Undercliff Road

3.62.7 Photograph – Separation between Hooe and Plymstock due to geographical features

3.62.8 Further aerial, photograph of Hooe

3.62.9 Map – Closest pharmacies all over 1 mile away in Plymstock

3.62.10 NHS England’s paper prepared for the February 2017 Pharmaceutical Regulations Committee.

4 Summary of Representations

This is a summary of representations received on the appeal.

NHS England

4.1 The letter of appeal makes frequent references to the ‘recent undated decision of NHS England’. The very first paragraph of the decision clearly states that NHS England’s Committee considered the application and made the decision on 20 April 2018. Primary Care Support England sent the decision to the applicant under cover of a letter dated 3 May 2018.

Rushport’s ‘case for reassessment’

4.2 NHS England consider that Rushport’s arguments about their previous application for this location are largely irrelevant to the current appeal, however NHS England will offer brief comments on the issues they raise.

4.3 Rushport express concern that they were unaware that when their previous application was considered by NHS England, the paper presenting the application to the South West Pharmaceutical Services Regulations Committee recommended that the application be granted. They suggest that this undermines the NHS England’s decision to refuse that original application.

4.4 NHS England would make the following observations:

4.4.1 It is disappointing that Rushport have not raised the concerns about the previous decision as part of their new application, instead leaving it until the appeal stage, and so have not given NHS England an

opportunity to address them as part of its consideration of the new application.

4.4.2 An Officer’s recommendation is just that – a recommendation. The Officer is not the decision-maker and nor is NHS England a rubber stamp. The members of NHS England will apply their own independent judgement when making a decision. It is perfectly possible for NHS England to place a different interpretation on the information presented to them to that of the officer and so reach a different decision.

4.4.3 For those reasons, if NHS England’s decision clearly sets out its reasons and what those are based on then what recommendation was made to NHS England becomes irrelevant – NHS England does not consider that the recommendation is material information.

4.4.4 The committee paper – and therefore the recommendation made within it to approve the application – was provided to the Appeal Unit as part of the initial bundle of papers for appeal SHA/18650.

4.4.5 The Appeal Committee, when it considers an appeal, considers all of the information provided – including any further information provided by the applicant, which in the case of both the previous and current applications is extensive – and effectively remakes the decision. In the case of the previous application the Appeal Committee concluded that the application should be refused.

The Current Appeal

4.4.6 NHS England would highlight that, in the current application, Rushport provided no substantive information in addition to that contained within the previous application. In the absence of any new information within the current application or about any changes in local circumstances (apart from the closure of the post office in Hooe, as mentioned below), and given that the Appeal Committee had confirmed the refusal of the previous application, NHS England felt that it had no option but to refuse the current application.

4.4.7 NHS England does not dispute that due to the changes in altitude on the routes it is unlikely that residents will walk to the existing pharmacies. However, adopting the view of the Appeal Committee as stated in para 6.29 of SHA/18650, it considers that difficulties of access on foot do not of themselves indicate that there is not a reasonable choice.

4.4.8 However NHS England considers that private or public transport does provide reasonable access to the existing pharmacies.

4.4.9 Regarding private transport, in para 6.30 of SHA/18650 the Appeal Committee found that there was a fairly high level of car ownership, and concluded that it had not been shown that residents with cars were having difficulties accessing services. We note that the Applicant has not, in this appeal, put forward any information to displace this conclusion.

4.4.10 The Applicant addresses the issue of public transport at paragraphs 2.8-2.10 of the appeal letter. The Applicant seeks to show that neither of the two bus services serving Hooe assist in providing access to existing pharmacies by reason of:

4.4.11 the Target Travel service 7D only serving the eastern part of Hooe

4.4.12 the Stagecoach service 2/2A being hard to access because of the gradients.

4.5 Maps of the routes taken by those two services, and timetables (with NHS England’s annotations in orange), are attached.

4.6 Regarding the 7D, NHS England acknowledge that this only serves the eastern part of Hooe, with the closest stop being about 450 metres eastwards from the centre of the applicant’s best estimate (or 250 metres from the edge of the best estimate area), at the junction of Hooe Road and Meadow Park. This stop is uphill from the best estimate area, at an altitude of about 24 metres.

4.7 However NHS England would highlight that this service also stops at Sharrose Road (on the southern edge of Hooe, altitude about 61 metres) and Ashery Drive (on the northern/eastern edge of Hooe, altitude about 39 metres). It therefore enables some patients living away from the main Hooe Road to travel to the centre of Plymstock by bus without having to walk to/from Hooe Road.

4.8 Regarding the 2/2A, while this service does not directly serve any of the side roads off Hooe Road, it does travel all the way along Hooe Road through the Applicant’s best estimate area (with a stop virtually at the centre of the 200m radius circle), through Turnchapel and on to Mount Batten and back, at very frequent intervals. It was the presence of this service, in particular, which the Appeal Committee cited in para 6.31 of SHA/1860 as providing a reasonable alternative to walking.

4.9 For those reasons NHS England consider that there is already reasonable access to pharmaceutical services by way of private and public transport.

4.10 Regarding some of the Applicant’s other points:

4.10.1 The Applicant again repeats its argument that Hooe is self-contained and isolated. NHS England would maintain its view that Hooe is best considered as a part of Plymstock. NHS England attaches the same aerial photograph that was provided in connection with the previous appeal. The Applicant suggests, on a couple of occasions, that Hooe could be ‘cut off’ if the ‘lifeline that is Hooe Road’ ‘became impassable due to accident, poor weather or road roadworks’. NHS England do not consider that this small possibility is a sufficient reason to justify a pharmacy within Hooe.

4.10.2 Regarding the issue of deprivation, while there is social housing in Hooe overall it is not a particularly deprived area. NHS England attach a table and a map from the Plymouth Summary Analysis of the 2015 Index of Multiple Deprivation which ranks the ‘neighbourhood’ of

Turnchapel, Hooe and Oreston as 29 out of 39 neighbourhoods in the city (1 being most deprived).

4.10.3 NHS England does not agree that there are significant facilities in Hooe to meet the day-to-day needs of local people. NHS England noted the recent closure of the Post Office in Hooe (see paragraph 21 of the decision). NHS England are unclear which ‘supermarket’ the Applicant is referring to at paragraph 4.4 of the appeal letter – NHS England is aware only of conveniences stores. As NHS England stated in paragraph 30 of its decision “patients will definitely need to travel outside the immediate vicinity for many things, for example to … The Broadway [in the centre of Plymstock] which is located in close proximity to the existing pharmacies”.

4.10.4 Regarding the housing development off Barton Road mentioned by the Applicant, the Applicant’s figure of 500 new residents is broadly in line with the increase in the patient list sizes for the GP practices in Plymstock between 2016 and 2018. However this is not a particularly large increase and there is no evidence that the existing pharmacies – which served the area before those houses were built – cannot cope with such an increase.

4.10.5 The Applicant’s figure of 1,000 tourists per day visiting the area in summer is speculative so should be treated with caution.

4.11 Finally, NHS England disagree that in the case of any doubt the balance must favour the Applicant. NHS England (and on appeal, the Appeal Committee) is required “to be satisfied” that there would be a significant benefit. If there is doubt then the decision maker cannot be satisfied, in which case the application should be refused.

4.12 Enclosed with NHS England’s letter were:

4.12.1 Ariel view of Hooe/Plymstock

4.12.2 Bus route maps and timetables

4.12.3 Index of Multiple Deprivation (IMD) 2015 Plymouth Summary Analysis.

Devon Local Pharmaceutical Committee

4.13 Hooe is a small suburb of Plymstock and falls within the Health and Wellbeing Being Board area of Plymouth. The site is adjacent to the estuary of the River Plym and is surrounded by five disused quarries and Ministry of Defence land. Hooe has one small garage selling used cars, newsagent and a convenience store with Post Office. There is a small new housing development site adjacent to the Hooe Lake at the river end of the estuary. Contrary to the statement made in point 2.17 (Page 7) of the Appellant’s report, the LPC did conduct a site visit to Hooe in the middle of a weekday afternoon. The members were struck by the quietness of the village and did not observe any pedestrians during the one hour spent there, although a few cars did pass through.

4.14 Plymstock is one of the least deprived localities in Plymouth with the lowest health needs. The Plymouth Sustainable Neighbourhoods' study which

describes the area of Hooe, Turnchapel and Oreston states that 68% of the population travel to work by car exceeding the Plymouth and national averages of 63.5% and 61.5% respectively. The population has a good employment rate, little deprivation and relatively good health. The neighbourhood is relatively close to the Broadway Shopping Centre.

4.15 There are three GP practices in Plymstock and four community pharmacies. The nearest pharmacy is 0.9 miles from the centre of Hooe. There are also two distance selling pharmacies that serve the whole population of Plymouth. The four existing pharmacies in Plymstock are accessible by public transport and regular buses run from Hooe into the local shopping centre of Plymstock which appears to be where the majority of people access their local services. Boots and Morrison’s are both open later than 6.30 pm and Morrison’s open at 8.00 am in the morning. The applicant has not offered core hours of opening beyond 5.30 pm Monday to Friday, or at the weekends.

4.16 The Plymstock locality has the 2nd highest proportion of car ownership in Plymouth and the majority of the population can access a pharmacy by car within 5 minutes. The Plymouth Pharmaceutical Needs Assessment 2018-21 has not identified any gaps in pharmaceutical provision.

4.17 The Devon LPC has not been made aware that the local population is experiencing any difficulty in accessing pharmaceutical services and there is no evidence provided by the applicant that this is the case. The Applicant has not provided any information on how innovative services would be provided to meet specific needs of people with protected characteristics identified in the application as the elderly infirm and young families. Despite the assertion by the Applicant that innovation is not often a subject of significant debate in applications for unforeseen benefits, it remains a test for consideration.

4.18 The Devon LPC is of the opinion that the granting of the application would not secure improvements, better access or significant benefits on people in the area which were not foreseen when the PNA was published. The LPC does not consider that the application should be allowed

Boots UK Ltd

Location

4.19 We agree with the statements provided by NHSE that the area of Hooe should be considered part of Plymstock, it clearly benefits from the facilities there, with having very few of its own. Wikipedia states Hooe is a small suburb of Plymstock, part of the City of Plymouth.

4.20 We also agree with the descriptions of the terrain. It is hilly in parts as is most of the surrounding area. What is clearly evident that despite the lack of facilities and the terrain, people choose to live there, because they want to not because they have to. On visiting the area, there are very _few properties-for sale, the recent house building referenced in the appeal, is in Turnchapel rather than Hooe and was called the Compass Point development. This is fully established and all are occupied with completion being a couple of years ago. These luxury apartments and residences benefit from a view over the marina and sailing club and are close to the cycle causeway that allows crossing for pedestrians and cyclists from the peninsular to Plymouth City.

4.21 The appellant has indicated they believe the population has increased by circa 500 as a result of the housing, and that they are either retirement couples or young families but provide no evidence this is actually the case, it is pure speculation and largely irrelevant with it not being a significant population increase.

4.22 The buildings, residences and accommodation across Hooe and Turnchapel do not indicate in any way that this is any sort of deprived area, quite the opposite. The one very small estate that visually looks to be less affluent is the Stamford Court private estate or Stamford Close as identified by the appellant. This is an estate of 82 bungalows and were originally built in the 60's for Royal Navy personnel. In the early 1980's they were bought by a private company and released for public sale. The public areas and gardens of this estate is now managed by a local team of residents. This is not, despite what it seems, a council run area for the deprived. Source - http://www.stamfordcourtmanagement.co.uk

4.23 People in this location are highly mobile with high car ownership, this does include the elderly population, who choose to live here. Properties of a similar type and value exist in Plymstock, Ivybridge, Plympton, where terrain is flatter. Looking at various streets on the website Streetcheck it would seem that most of the properties are privately owned or second homes. The quantity of privately and social rented or social housing is in the small minority i.e. less than 10%

4.24 The appellant claims there is local good facilities, we believe this not to be the case, there is no healthcare, no GP, dentist, petrol station, bank, hairdresser, no clothing stores, large supermarket for weekly shop. We fail to see that a few takeaways, a convenience shop, two public houses and a car showroom make good facilities

4.25 Regardless of the small number of retail outlets that are in the locality we believe that apart from immediate convenience, there are still insufficient facilities to meet the weekly needs of the population. To use the lack of local service provision as an excuse to refuse an application is, as the appellant well knows, a consistent approach taken by all NHS area teams and NHS Resolution.

4.26 The primary school is quite small (circa 200 pupils in 2016/17) but ideally suited to the relatively small population of Hooe. It is worth noting that only approx. 16% of the pupils that attended in the last 6 years were entitled to free school meals compared with 24.9% national average, this goes some way to show the area is not deprived. Source www.compareschool- performance.service.gov.uk

4.27 The appellant has given no evidence on page 17 of their appeal with regards patients with protected characteristics, that there are any currently experience difficulties accessing pharmacy services. The few that do have limited mobility have regular deliveries from the 3 pharmacies in Plymstock, who all deliver to the area.

Existing Provision

4.28 There are three pharmacies in nearby Plymstock, the details of which are all mentioned in the decision letter by NHSE. Between the three all NHS and

private services are covered and the opening hours are extensive, with our store in The Broadway not closing until 9pm in the evening.

Choice

4.29 The patients and residents of both Hooe and Plymstock benefit from a choice of two major Pharmacy chains in Boots UK and Well, with an established local Independent, pus the pharmacy in Morrison's where the vast majority of residents do their weekly shop.

4.30 It is a short 10-15 minute car or bus ride in to Plymouth City centre where other pharmacies can be reached.

4.31 Plymstock town centre offers a vast variety of shops and local services, so much so that residents are unlikely to need to have to travel into Plymouth City very often. As well as Morrison's there is a Lidl and an Iceland, in the pedestrian area there is a travel agents, florist, bakery, opticians, hair salon, Costa coffee, card shops, clothes shop, charity shop, pet shop and the library is nearby. Other retailers are on the opposite side of the Broadway and consist of solicitors, estate agents, take away restaurants and many more. The four GP surgeries are also in this location and all are less than a mile apart.

Access

4.32 The applicant has provided no evidence to suggest that patients are experiencing significant difficulty when wishing to access services nor have they identified a specific patient group that share a protected characteristic that are having difficulty accessing services to meet a particular need.

4.33 The PNA refers to the level of car ownership in the locality and refers to all pharmacies being accessible by public transport. Access to the existing pharmaceutical services was considered it the time of drafting the PNA and to our knowledge there have been no significant changes since this time that would have an effect on the accessibility of services

4.34 We accept that it is too far too walk to a pharmacy, but as we have stated previously this is not how patients and people move throughout the area, it is primarily by car, and to some extent public transport. Bus services are good with the Stagecoach 2J2A being the dominant provider.

4.35 The appellant indicates there is only one access road (page 12 of the appeal section 5.5) presumably they refer to Hooe Road, this is incorrect in the fact you can access Hooe via Staddiscombe and approach Hooe from the South. We appreciate this is not a particularly direct route depending on the start and end point of their journey, but it is an access route none the less. We would argue the fact that the local people would be unaware of the alternative routes, where they led to, and that they are inaccessible. The southwest coastal path, albeit walking only is another access route across to the peninsular.

Innovation

4.36 The appellant indicates innovation or an innovative approach is not being considered to support this application

PNA 2015 and 2018

4.37 The Pharmaceutical Needs Assessment of Plymouth Health and Wellbeing Board 2015 2018 has considered defined localities within the Plymouth area and the effect on demand for pharmaceutical services any future developments will have. It is therefore unclear which elements of the current situation were 'unforeseen' during the preparation of the PNA.

4.38 On reviewing the draft 2018 PNA, there is still no mention of a requirement for pharmaceutical needs in Hooe and the surrounding area

4.39 We wish to submit the Area Profile compiled by Plymouth City Council in 2014 submitted as part of the Joint Strategic Needs Assessment. Whilst this was four years ago, we believe the content to still be relevant. Page one that summarises the area, gives no indication this is a deprived area, indeed quite the opposite.

4.40 The barriers to housing and services measure is split into two domains, 1) geographical barriers which measures accessibility to shops, GP's, schools and Post Offices and 2) wider barriers that include access to social housing. Whilst this is only marginally worse than Plymouth as a whole, we believe the deprivation score should be the reason to grant a new pharmacy contract in this location. The appellant on page 15 section 5.13 of their appeal quote figures of areas of deprivation but provide no evidence of this, no source and no data to support this. Therefore it should not be considered as evidence to support the appeal.

4.41 With regards to conversations 'coming to light' at a recent Oral hearing, we feel we are not obliged to comment, but believe the Area team is best placed to provide their argument on the matter. Presumably just one case officer suggesting an approval is not sufficient to be a majority amongst their panel.

4.42 It is also worth noting the appellant is also applying for a new contract in nearby Yealmpton, approx. 5 miles away, this is also at appeal stage, and they use the very same arguments in a similar location with a much smaller population.

4.43 The appellant's previous application and appeal from 2017 is no different to this one, there have been no changes to any type of demographic in this time, and whether they believe the terrain to be a barrier to movement, or distance to travel, and is without evidence other than the obvious.

4.44 In conclusion, we submit that the application will not confer significant benefits on persons in the area which were not foreseen when the relevant PNA was published. We respectfully urge NHS England to refuse this appeal for these reasons.

4.45 Enclosed with letter was an extract from Wikipedia referring to Hooe.

5 Observations

Observations received by NHS Resolution in response to the representations received on appeal.

Rushport Advisory LLP (Applicant)

5.1 We have the following final submissions to make by way of rebuttal.

NHS England

5.2 NHSE attempts to justify its decision making process instead of accepting that they have made an error. Whilst this appeal is essentially a de novo consideration of the application and the deficiencies in the NHSE decision making process are cured by it, we would still make the following points and hope that NHSE might reconsider its decision making process in future cases.

5.2.1 We did not raise this matter in the initial application as we wished to find out if it was a policy decision to withhold the information or just a mistake.

5.2.2 We agree that Committee members are not obliged to follow a recommendation from a case officer. However, where they disagree with the only person that has visited the site they should explain why they have reached a different decision.

5.2.3 NHSE that they do not consider that a case officer’s recommendation is “material information”. If this were correct then why has NHSE requested a recommendation from their case officer? Likewise, why did NHSE feel that the case officer’s decision would be material to NHS Resolution and send it to them, but not to the applicant in the case? This is no different from the prosecution in a criminal trial providing evidence to the judge but refusing to disclose it to the defence.

5.2.4 This is not simply an attempt to criticise. NHS bodies must be seen to make open and transparent decisions and explain their actions in a professional way. We hope that NHSE will provide copies of all relevant documents to parties in the future.

The Appeal

5.3 NHSE accepts the changes in altitude around Hooe, but disagrees with almost everything else that has been stated in our appeal

5.4 With respect to the relevant populations, we say that it is the residents and visitors to Hooe. NHSE state that Hooe should be considered part of Plymstock, but this entirely misses the point of the Regulations. Hooe is part of Plymstock in the same way that Westminster is part of London and London is part of England. Stating these basic points does not deal with access at all and is in no way helpful.

5.5 Our appeal highlights that Hooe is a separate community, physically, geographically and socially. The response from the objectors and NHSE is to suggest that patients can travel to other areas even though the bus service is limited and there is difficulty getting to bus stops, cars are not available to a large proportion of the population during the day and walking is simply not an option. In any case where there is no chance of patients being able to walk to the nearest pharmacy irrespective of how fit they are, this must raise some doubt about the accessibility of alternate pharmacies outside where they live.

It is even more important when considering choice as there is no reasonable choice for patients who live in Hooe.

5.6 NHS Digital data shows that Hooe is in the worst performing decile in respect of access to a pharmacy (see output attached). The map is interesting as it shows that Hooe has poor access and so does Elburton (to the west) where NHSE refused an application which was then granted at appeal after an oral hearing (SHA/18654). Interestingly, the came case officer considered the applications in Hooe and Elburton at the same time and recommended approving Hooe and refusing Elburton.

5.7 NHSE comments in respect of deprivation are very disappointing. There is a high level of social housing, especially around the application site. NHSE use a wide area to obtain their information instead of focusing on Hooe. Had they focussed on Hooe they would have seen that the location falls in Plymouth 031ELSOA (i.e. neighbourhood), which is ranked 14,541 out of 32,844 LSOAs in England; where 1 is the most deprived LSOA. This is amongst the 50% most deprived neighbourhoods in the country. However, this ignores the high level of deprivation that is found around the application site and only provides an average across the LSOA.

5.8 In respect of the Health Deprivation and Disability Domain the same location (LSOA) is ranked 8,149 out of 32,844 LSOAs in England; where 1 is the most deprived LSOA. This is amongst the 30% most deprived neighbourhoods in the country. Instead of looking at these indices (which are clearly relevant), NHSE has used the Index of Multiple Deprivation which scores areas based on criteria such as living environment (where Hooe scores well due to being semi-rural whereas a very rich are such as Chelsea in London scores badly due to traffic issues). The IMD is therefore not a reflection of the relevant matters and should not be relied upon.

5.9 We note the LPC goes even further and simply ignores the location of the application site and provides information for Plymstock only. It is not even clear if Hooe is within the area that the LPC provides information for.

5.10 Boots claims that the only deprivation is around Stamford Close (presumably because we provided photographs of this area), but this is not the only are of deprivation. As an example, the application site and the houses around it are also in a deprived area. Boots criticise part of our appeal as speculative but then make statements such as “People in this location are highly mobile with high car ownership, this does include the elderly population who choose to live here”. As car ownership figures are not broken down by age this is simply a guess by Boots and common sense tells us that elderly persons are likely to be less mobile and may not be able to drive.

5.11 Boots tells the Committee about one other road that links Hooe with the rest of England, but even Boots acknowledge that “this is not a particularly direct route”. In fact it more than triples the journey that would be required as there is no pharmacy is Staddiscombe either. The south west coastal path is for hikers and tourists (which NHSE are not sure use it in the numbers we have suggested).

5.12 There is clearly a complete divergence in opinion in this case and NHSE even disagrees with its own case officer even though that officer was the only person to visit the site. Given this we ask the NHS Resolution determines this

application by way of an oral hearing so that the Committee can see the difficulties faced by patients for themselves. We have personally visited this site on several occasions and it is frankly absurd to suggest that granting this application would not provide better access to pharmaceutical services for the relevant population.

5.13 Attached to the Applicant’s letter was a map showing access to pharmacies in the area.