1 Trevelyan Square 4 April 2019 Boar Lane Leeds LS1 6AE REF: SHA/21049

Tel: 0113 86 65500 APPEAL AGAINST NHS ENGLAND SOUTH WEST AREA Fax: 0207 821 0029 TEAM, NHS COMMISSIONING BOARD ("NHS Email: [email protected] ENGLAND") DECISION TO REFUSE AN APPLICATION BY A& H PHARMACIES LTD FOR INCLUSION IN THE PHARMACEUTICAL LIST OFFERING UNFORESEEN BENEFITS UNDER REGULATION 18 WITHIN 450m OF COURTYARD SURGERY, 39 HIGH STREET, WEST LAVINGTON, DEVIZES, WILTSHIRE, SN10 4JB

1 Outcome

1.1 The Pharmacy Appeals Committee (“Committee”), appointed by NHS Resolution, quashes the decision of NHS England and redetermines the application.

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/How-we-use-your-information-- -FHSAU.aspx

1 Trevelyan Square REF: SHA/21049 Boar Lane Leeds APPEAL AGAINST NHS ENGLAND SOUTH WEST AREA LS1 6AE

TEAM, NHS COMMISSIONING BOARD ("NHS Tel: 0113 86 65500 ENGLAND") DECISION TO REFUSE AN APPLICATION Fax: 0207 821 0029 BY A& H PHARMACIES LTD FOR INCLUSION IN THE Email: [email protected] PHARMACEUTICAL LIST OFFERING UNFORESEEN BENEFITS UNDER REGULATION 18 WITHIN 450m OF COURTYARD SURGERY, 39 HIGH STREET, WEST LAVINGTON, DEVIZES, WILTSHIRE, SN10 4JB

1 The Application

By application dated 12 June 2017, A&H Pharmacies Ltd (“the Applicant”) applied to NHS Commissioning Board (“NHS England”) for inclusion in the pharmaceutical list offering unforeseen benefits under Regulation 18 within 450m of Courtyard Surgery, 39 High Street, West Lavington, Devizes, Wiltshire, SN10 4JB . In support of the application it was stated:

1.1 In response to why this application should not be refused pursuant to Regulation 31, the Applicant stated “the nearest pharmacy is located 1.4 miles away from the proposed site and therefore Regulation 31 is not applicable”.

Supporting documentation:

1.2 West Lavington and Littleton Panell form a village on the edge of the Salisbury plain. The village is on the A360 road between Devizes and Salisbury, about 5 miles (8 km) south of Devizes.

1.3 Facilities available within and around the village are typical of those found in larger villages and small towns reflecting the extent to which residents are reliant on the village for their daily needs. These facilities include the following

1.3.1 an independent day and boarding school, Dauntsey's School

1.3.2 a primary school, Dauntsey Academy Primary School,

1.3.3 a pub, the Churchill Arms

1.3.4 a village hall

1.3.5 a shop with a Post Office

1.3.6 a cash machine

1.3.7 a doctors' surgery

1.3.8 a 19 bed care home, Dauntsey House

1.3.9 a 3 bed care home, The Old Dairy

1.3.10 a 8 bed care home, The Haven

1.3.11 hairdresser, Heads on High

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1.3.12 Churches

1.3.12.1 All Saints' Church plus closed graveyard and burial ground

1.3.12.2 St Joseph’s Roman Catholic Church

1.3.12.3 Ebenezer Baptist Chapel

1.4 The surgery provides a service to patients within a 6-7 mile radius and has a list size of approx. 2640 patients (ref. CQC report 31 December 2016) West Lavington has as a population of 1502 (in 2011). In addition 700 pupils including approx. 350 boarders, for part of the year, are resident in the community together with an additional 240 full and part time staff (approx. 40 of which live in West Lavington).

Local population and healthcare needs:

1.5 The resident population of the parish is more elderly than the England average. The proportion of the Parish population aged over 65 is 17.3% compared to 16.4% across England. This is reflected by the provision of Care Homes within the area.

1.6 The Applicant believes the pharmaceutical needs of the residents are greater than might ordinarily be expected in a village of this size.

Health and Disability in the Community

1.7 Data for health from the 2011 census indicates that, of a population of 1502, there were 126 in fair health. 32 were in bad health and 10 in very bad health.

1.8 Data for disability published in May 2011 showed 45 attendance allowance claimants in West Lavington aged 65+ (21.4%), which is higher than Wiltshire (15.9%) and England (17.1%).

1.9 Generally, the 2011 census estimates show that compared to England, Wiltshire has a relatively high percentage of its local population at retirement age and above (21.5%).

1.10 1.3% of the adult population are in long-term nursing residential or residential care and this has risen from 1.2% since 2007. They are mainly in the 85+age group. It is predicted that by 2025, if the current trends continue, there will be 6,930 people in Wiltshire in long-term residential care, compared to around 4,600 today.

Existing healthcare provision:

1.11 There is currently no pharmacy in West Lavington. The nearest Pharmacy is located in Market Lavington, a distance of 1.4 miles by road. The next nearest is Boots, Rowlands and Morrison’s some 5.3 miles away in Devizes.

1.12 There is one medical centre within the village that has recently increased the number of GPs. Courtyard Surgery, 39 High St. West Lavington. In the West Lavington neighbourhood plan reference is made to the fact that dementia is a key issue within a local ageing population and transport is an issue (see extract below), thus indicating the need for access to pharmaceutical services that does not require public transport.

'In the absence of alternative transport, heavy reliance is put on the local Care & Link scheme (locally called The Care Group), which relies on voluntary co-ordinators and drivers using their own cars. The main pressures are time and distance for the volunteer drivers. An additional burden is that drivers are asked to wait an indeterminate amount of time before the patient is ready for the return journey. As most drivers themselves are elderly, this places what is probably an unsustainable burden on this particular local facility.

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Access to hospitals, for visitors and family, as well as patients, from a location like West Lavington is a major issue which has not been addressed by the NHS and should be regarded as a priority. If the NHS could take steps to facilitate co-ordination of hospital appointments by community areas then transport to hospital by bus (including perhaps a community bus) might become practicable.'

1.13 The residents of the village do not currently have reasonable choice with regard to obtaining pharmaceutical services due to:

1.13.1 the distance to the nearest pharmacies

1.13.2 relatively infrequent public transport

1.13.3 a proportion of the resident population will not have access to a car at such times when to access pharmaceutical services is required

Proposed site:

1.14 The proposed site for the Pharmacy is within the village centre and will therefore be easily accessible to residents and visitors going about their daily business. As specific premises have not yet been secured this application has been made using a 'best estimate' of location.

Securing better access and choice

1.15 There is currently no Pharmacy in West Lavington. Given the distance to the next nearest pharmacies, there is no reasonable choice for residents in terms of existing pharmaceutical services.

1.16 The nearest pharmaceutical services in Market Lavington do not meet the opening times of the surgery in West Lavington by some 11.5 hours. 1 hour each day Monday - Friday 8am-9am, 30mins each day Monday - Friday 1pm- 1.30pm, 30 mins in the evening each day Monday - Thursday 6pm-6.30pm and on Fridays an additional 2 hours 6pm- 8pm. Most of which the Applicant proposes to meet as core hours in the application.

1.17 There is evidence that residents would welcome a pharmacy and shop in the village. In the Neighbourhood plan the Parish Council made the following comments:

'Shops

Historically, the villages had many shops. From south to north, there was a post office at The Old Post Office, Church Street, a bakery at The Old Bakery, High Street, a garage at the site of the Courtyard Surgery, a petrol station opposite the Millennium Cross, a chemist at the current Cost cutters site, a Post Office also there, a former post office at the cross roads, a cycle shop at the Stage Post pub site and more. All of those have gone.

Future

Three retail outlets remain. Basic groceries are available at two sites, hair dressing at another. There appears to be a general desire for no more closures but only so long as there is tangible public support will local shops remain viable.'

1.18 Current public transport between West Lavington and the closest Pharmaceutical services is poor and mentioned in the neighbourhood plan (see enclosed bus timetable).

Patient groups sharing protected characteristics

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1.19 In the Applicant’s opinion, pharmaceutical services are currently difficult to access for all residents of West Lavington and the scale of access problems will increase as the population grows and ages. As previously mentioned there is a high elderly population and as age is a protected characteristic, the specific needs of this population must be taken into account. Dementia is of particular concern to the local population and all the pharmacy team will be trained as dementia friends and provide facilities to meet this particular group e.g. medication will be provided in dossette box trays where appropriate and the team will work with the local care providers and dementia UK to ensure the needs of the patient are met.

1.20 This is also the patient group most reliant on pharmaceutical services. Given that many of the oldest residents will not drive and public transport is poor, it is particularly important for these people to have access to pharmaceutical services within easy reach of their homes. Provision of pharmaceutical services within easy proximity to the surgery will significantly improve access to this patient group.

Conclusion

1.21 West Lavington is a popular village with village facilities that the local population wish to maintain and expand. An additional retail outlet and dispensing Pharmacy would be welcomed, providing much needed pharmaceutical services as well as employment to the local population. There is a clear gap in pharmaceutical service provision.

1.22 Current provision of pharmaceutical services is over a mile away and does not meet the surgery opening times particularly mornings and evenings with a significant shortfall on Friday evenings.

1.23 The proposed pharmacy will offer residents a highly accessible pharmacy and provide much needed choice. It will ensure that services focus particularly on the needs of the local elderly population.

1.24 The Applicant urges NHS England to approve this application accordingly.

2 The Decision

NHS England considered and decided to refuse the application. The decision letter dated 4 December 2018 states:

2.1 NHS England have considered the above application and are am writing to confirm that it has been refused. Please find enclosed a document detailing the refusal of the application.

Extract from PSRC Minutes of 2 November 2018

2.2 The PSRC had before them;

2.2.1 The application 2.2.2 Map of the relevant area 2.2.3 Responses from the interested parties 2.2.4 A response from the applicant 2.2.5 Guidance on pharmacy applications in controlled localities - Reserved location and Prejudice Test and a copy of Part 7 of The Regulations. 2.2.6 GP registered population count within 1.6km radius of the proposed new pharmacy location taken June 2017 2.2.7 GP registered population count within 1.6km radius of the proposed new pharmacy location taken July 2018 2.2.8 Local GP list sizes 2.2.9 Local pharmacy dispensing totals 2.2.10 Bus route timetables (most frequent) 2.2.10.1 Salisbury → Devizes (2)

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2.2.10.2 Trowbridge → Devizes (87Z) 2.2.11 PNA – pages for the Devizes Community Area 2.2.12 Confirmation and map of nearest pharmacies to SN10 4JB 2.2.13 Report from the rurality review site visit 2.2.14 Minutes from the March 2018 rurality review meeting 2.2.15 Map of the defined rural area 2.2.16 Copy of Regulation 18 2.2.17 Guidance for Regulation 18 2.2.18 The NOMIS web Local Area Report for West Lavington statistics: 2.2.18.1 Age structure 2.2.18.2 Car ownership 2.2.19 NHS Choices profile information for local pharmacies

2.3 Based on this information, the PSRC considered it was not necessary to hold an oral hearing.

2.4 Prior to commencement of the meeting NHS England South West (North) had reviewed the comments within the consultation responses. It was noted that Day Lewis Plc, in their letter dated 24th August 2018, made reference to the best estimate distance of 450m provided by the applicant. It was agreed that, should the application be granted, the proposed location of the pharmacy within that 450m radius is relevant particularly in respect of the consideration of the issue of reserved location. In order to obtain clearer information in this regard, the applicant was contacted before the Committee started their formal determination proceedings. The Committee was satisfied that this information allowed for an informed judgement of reserved location to be made using the patient count taken for the area of SN10 4JB. With regard to the commercial sensitivity of the information the Committee agreed that the decision letter would not specify the premises that the applicant is considering at this time.

Consideration by the PSRC

2.5 Senior Admin Support, NHS England South West (North), confirmed the process undertaken so far in respect of this application. It was noted that the application has been out to consultation twice. The application was received in June 2017 and was circulated for 45 day consultation in accordance with The NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013. As a result of the consultation letter, NHS England received a request to make a controlled locality determination of the area and a rurality review was undertaken. It was determined the area should remain a controlled locality. No appeals were made against the decision. The application was circulated for a further 45 day consultation in July 2018. Due to the two consultations involved in this case, two patient counts were taken. The count taken in June 2017 showed the number of patients living within 1.6 km of the proposed location as 2,863. The count taken in July 2018 resulted in a patient count of 2,932 for the same area.

2.6 The members discussed the two patient counts taken due to the various Regulatory consultation processes undertaken and agreed that the Regulations are clear that the patient count must be taken on the day the application is received. In this case there was no reason to use the second count taken. Therefore, the count of 2,863 was used.

2.7 The application was circulated to interested parties in accordance with the Regulations and comment on each element for consideration was sought. The following responded:

2.7.1 Morrison’s 2.7.2 Rowlands 2.7.3 Day Lewis 2.7.4 Swindon & Wilts LPC 2.7.5 Wilts CCG 2.7.6 Boots 2.7.7 Courtyard Surgery 2.7.8 Public Health Wilts

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2.7.9 The Orchard Partnership, Wilton (1st consultation exercise) 2.7.10 Market Lavington Surgery (1st consultation exercise)

2.8 The Committee reviewed the consultation responses in regard to reserved location and noted that none considered the area should have reserved location status applied. In the absence of a reason to disregard the Regulatory threshold of 2,750 patients the members unanimously agreed that the area is not a reserved location and that it must therefore now consider, in accordance with Regulation 44, whether granting the application would prejudice the proper provision of relevant NHS services in the relevant Health and Well-being Board (HWB) area or in the area of a neighbouring HWB.

2.9 It was noted that the practices in West Lavington and Market Lavington are not dispensing practices. It was also noted that the number of patients dispensed to within a 1.6km radius of the proposed pharmacy location by practices outside of the area is five. The members referred to the consultation responses and noted that no evidence had been presented to suggest that there would be a significant impact on GP dispensing in the area if a pharmacy were to open in West Lavington. The PSRC agreed that there are no grounds to refuse the application by virtue of Regulation 44.

2.10 The PSRC proceeded to consider the application under Regulation 18. The PSRC were assured that preliminary matters had been considered and determined as follows:

2.11 Under Regulation 40 - The PSRC was satisfied that the proposed location is not within an area in which outline consent has been granted within the last five years, or, within 1.6km of the location of a previous pharmacy application refused within the last five years. The PSRC therefore did not have grounds to refuse the application by virtue of Regulation 40.

2.12 Under Regulation 31 –The PSRC was satisfied that there are no other contractors currently providing pharmaceutical services from the premises to which the application relates, or from adjacent premises. The PSRC therefore did not have grounds to refuse the application by virtue of regulation 31.

2.13 Under Regulation 32 –The PSRC was satisfied that the premises are not within an LPS designation. The PSRC therefore did not have grounds to refuse the application by virtue of regulation 32.

2.14 The PSRC was informed that the applicant had been notified that the application would be assessed against the 2018 PNA rather than the 2015 PNA. Due to the delays involved with the application the applicant was given the opportunity to make representation on the applicability of the 2018 PNA to the application and provide good reason if they wanted it to be assessed against the 2015 PNA. It was noted the applicant confirmed they had reviewed the new PNA and did not wish to comment. The Committee agreed that the 2018 PNA would be applied to the application.

2.15 The PSRC reviewed the application and the services offered. It was noted that the opening hours are offered through Monday to Saturday with Saturday being solely supplementary hours. It was noted that the applicant is offering to provide essential services, advanced and enhanced services from the proposed new pharmacy.

2.16 The PSRC noted the applicant’s comments regarding existing healthcare provision in the area, in particular the distances to the nearest pharmacies, the frequency of public transport and car access. It was noted the nearest pharmacy is in Market Lavington which is approximately 0.9 miles from the best estimate location. NHS England is aware that the pharmacy at Market Lavington provides a collection and delivery service from the local GP’s. There are pharmacies in Devizes approximately 5 miles away offering evening and weekend hours and a variety of services. The Committee noted from the papers that there are regular bus services running through West Lavington to and from Devizes and Trowbridge and community transport services available in the

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area. It was noted that bus services into Market Lavington are more restricted than on the route through West Lavington. The applicant states that a proportion of the resident population will not have access to a car, however, the NOMIS website profile for West Lavington, which uses the ONS 2011 Census data, states that only 14.9% of the population of the West Lavington parish does not have a car or van, which is a low number.

2.17 The PSRC reviewed the site visit notes and noted that West Lavington is situated along a main road that runs straight to Devizes and whilst the village itself is situated within a rural area, the main road provides easy access to Devizes where there are a great many services available. West Lavington itself has a limited range of amenities and it was felt that the population of West Lavington must travel regularly outside of the village to access a variety of general services not available on their doorstep and this demonstrates that the population is mobile.

2.18 The Committee turned to the PNA and noted that the area is included within the profile for the Devizes Community Area. The specific area of ‘The Lavingtons’, as it is sometimes known locally, is not referred to independently in the PNA. It was noted that the PNA acknowledges that Wiltshire is a large, predominantly rural county and concludes throughout that the whole of Wiltshire is very well provided for with regard to primary care services, including pharmaceutical services by pharmacies and dispensing doctors.

2.19 The PSRC referred again to the written representations received. It was noted that no party supported the application. The LPC and Day Lewis PLC highlighted the potential effect of an additional pharmacy on the existing pharmacy in Market Lavington. The Committee noted the number of scripts dispensed by the Market Lavington pharmacy for the year up to June 2018 and noted that the pharmacy is averagely busy. It was agreed that there could be a negative impact to this pharmacy if one were to open in West Lavington, however, the consultation responses gave no evidence to demonstrate the level of that impact.

2.20 The PSRC noted the applicant appears to have hinged the reasoning for unforeseen benefit upon reasonable choice and protected characteristics and has ruled out the need to attempt to demonstrate innovation entirely. The applicant highlights that they propose to provide a dementia care and dosette box service for patients, however, the Committee felt that these services should be provided as basic good practice by any pharmacy and are one of a range of adjustments available to community pharmacy under the Equality Act.

2.21 The PSRC proceeded to check the application against all specific aspects of Regulation 18 of the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013.

2.22 Under Regulation 18 (2) (a) – The PSRC concluded that granting this application would not cause significant detriment to proper planning in respect of the provision of Pharmaceutical Services in the area. The PSRC also noted that no evidence had been presented to suggest granting this application would cause significant detriment to the Pharmaceutical Services it already has in place. The PSRC did not have grounds to refuse the application by virtue of this regulation.

2.23 Under Regulation 18 (2) (b) (i) – The PSRC concluded that there is reasonable choice for Pharmaceutical Services in the area. There is a pharmacy in nearby Market Lavington offering a collection and delivery service and several pharmacies in Devizes offering a variety of services for extended hours. There is no evidence to suggest that patients find accessing pharmacies in the nearest towns difficult. With this in mind the Committee, taking into account the rural area, felt there is evidence of reasonable choice.

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2.24 Under Regulation 18 (2) b (ii) - The PSRC discussed the definition of a protected characteristic. It was agreed that age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation are factors. The PSRC noted that no evidence had been presented to show that these groups of the population had difficulty accessing existing services in the area. It was noted that the applicant refers to the older population living in the area, however, there is no evidence provided on what their need is and how it would be addressed.

2.25 Under Regulation 18 (2) b (iii) – The PSRC agreed the applicant had not attempted to demonstrated innovative pharmaceutical services.

2.26 Under Regulation 18 (2) (c) – The PSRC was satisfied that it would not be desirable to consider any other application at the same time as this application.

2.27 Under Regulation 18(2) (d) – The PSRC was satisfied there were no other applications to consider at the same time as this application.

2.28 Under Regulation 18 (2) (e) – The PSRC was satisfied there were no other applications under appeal.

2.29 Under Regulation 18 (2) (f) – The PSRC was satisfied that the application did not need to be deferred under any provision of Part 5 to 7 of the Regulations.

Determination

2.30 The PSRC determined that the application has not evidenced an unforeseen benefit in the 2018 PNA which needs to be addressed. It was agreed that the application focuses on a specific area that does not have a pharmacy, however, there is nothing to evidence that this presents a challenge for patients accessing pharmaceutical services. It was agreed that the application makes no attempt to demonstrate innovation. The PSRC therefore agreed that the application must be refused on the grounds that it did not pass the tests of Regulation 18 of the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013.

3 The Appeal

In a letter dated 30 December 2018 addressed to NHS Resolution, the Applicant appealed against NHS England's decision. The grounds of appeal are:

3.1 By application made on 26 June 2017, A & H Pharmacies Ltd (A&H) applied to NHSE to provide pharmaceutical services offering unforeseen benefits where the premises are not known. By letter received on the 4 December 2018 notification was given that the application had been refused by virtue of Regulation 18.

3.2 A&H believe that the application and supporting documentation provided sufficient evidence to support the application and prove that the current provision of pharmaceutical services does not provide reasonable choice.

3.3 In the matter of choice A&H disagree with the decision of the PSRC. A&H believe that there is no choice of pharmaceutical services within the village of West Lavington. Whilst the Regulations do discuss choice within the HWB it has also been found on many occasions by NHS Resolution that choice within the HWB does not lead to the automatic conclusion that the population has reasonable choice. It is not the case that residents of West Lavington can reasonably access every pharmacy within HWB that are >1.4 miles or <5 miles. Those pharmacies that are located too far away to access do not provide additional choice for patients.

3.4 Pharmaceutical services are currently difficult to access and the scale of access problems will increase as the population grows and ages. There is a high elderly

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population and as age is a protected characteristic, the specific needs of this population must be taken into account. Patients who choose to use the GP services provided at Courtyard Surgery can only access pharmaceutical services in Market Lavington, a distance of 1.4 miles by road from the proposed location of the Pharmacy. The next nearest pharmaceutical services are in excess of 5 miles. In the view of A&H this is not reasonable choice.

3.5 Should a patient wish to access pharmaceutical services the only choice is for them to go outside the village, the very limited bus-services to and from the area means that there is no reasonable choice for those without a vehicle. A pharmacy in West Lavington will improve choice, it will give all patients who have no alternative but to access the full range of pharmaceutical services outside the village the choice of accessing those services in the village.

3.6 A&H also provided evidence of the higher than average number of patients with protected characteristics that reside in the area and provided evidence that these groups currently have difficulty accessing existing services. A&H believes that evidence was provided on the needs required and how it proposed to address them.

3.7 Whilst A&H have not sought to class elderly patients as a specific patient group the Regulations do require NHSE to consider whether patients with protected characteristics have any difficulties accessing services that meet their specific needs. It is a matter of fact that elderly patients typically have greater need for pharmaceutical services and that older patients are typically less mobile than younger patients. A&H do not believe the PSRC took this into consideration in their decision.

3.8 Given the lack of pharmaceutical services in West Lavington A&H believe that older patients, who share a protected characteristic by virtue of their age, do have difficulty accessing pharmaceutical services that meet their needs. This is also the patient group most reliant on pharmaceutical services. Given that many of the oldest residents will not drive and public transport is poor, it is particularly important for these people to have access to pharmaceutical services within easy reach of their homes. Provision of pharmaceutical services within easy proximity to the surgery will significantly improve access to this patient group.

3.9 In addition, the nearest pharmaceutical services do not meet the opening times of the surgery in West Lavington by some 11.5 hours each week - 2 hours each day Mon-Fri 8am-9am, 1pm-1.30pm and 6pm-6.30pm and an additional 1.5 hours on Friday evenings 6.30pm-8pm. A&H propose to meet this shortfall as core hours in the application but this was not taken into consideration by the PSRC in their decision.

3.10 The West Lavington Parish Neighbourhood Area Plan stated that dementia is a key issue and currently the village accommodates two care homes, Dauntsey House and The Haven (which caters particularly for dementia). Dementia is of particular concern to the local population and A&H highlighted how they proposed to meet this required need by ensuring all the pharmacy team are trained as dementia friends and they would provide facilities to meet this particular group e.g.: medication provided in dossette box trays where appropriate and a team that will work with the local care providers and dementia UK to ensure the needs of the patients are met. PSRC put no weight on A&H proposal to work with local care providers and dementia UK to ensure the needs of this group are met. A&H also believe that this close working, aligning directly with Dementia UK does, in fact, demonstrate innovation of service to meet a local need.

Conclusion

3.11 West Lavington is a popular village with village facilities that the local population wishes to maintain and expand. An additional retail outlet and dispensing Pharmacy would be welcomed, providing much needed pharmaceutical services as well as employment to the local population. There is a clear gap in pharmaceutical service provision.

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3.12 Current provision of pharmaceutical services is over a mile away and does not meet the surgery opening times particularly mornings and evenings with a significant shortfall on Friday evenings.

3.13 The proposed pharmacy will offer residents a highly accessible pharmacy and provide much needed choice. It will ensure that services focus particularly on the needs of the local elderly population.

3.14 The Applicant urges NHS Resolution to overturn NHS England’s decision and approve this application accordingly

3.15 The Applicant has no further comments to make at this time but would wish to attend or send a representative to the NHS Resolution oral hearing should this be necessary.

4 Summary of Representations

This is a summary of representations received on the appeal.

4.1 NHS ENGLAND

4.1.1 NHS England South West (North) held a meeting on 2 November 2018. Having reviewed the application and consultation responses, it was decided that oral submissions would not be necessary.

4.1.2 The Committee noted the area had been reviewed in March 2018 when it was determined that the area should remain a Controlled Locality. The patients count for the area at the time was 2,683

4.1.3 The Committee determined that the area is not a reserved location and therefore consideration of whether granting the application would prejudice the proper provision of relevant NHS services in the relevant Health and Well- being Board (HWB) area or in the area of a neighbouring HWB is relevant in this matter.

4.1.4 It was noted that the practices in West Lavington and Market Lavington are not dispensing practices. It was also noted that the number of patients dispensed to within a 1.6km radius of the proposed pharmacy location by practices outside of the area is five. The PSRC concluded that there were no grounds to refuse the application by virtue of Regulation 44.

4.1.5 The PSRC proceeded to consider the application under Regulation 18. The PSRC were assured that preliminary matters had been considered and determined as follows:

4.1.6 Under Regulation 40 – The PSRC was satisfied that the proposed location is not within an area in which outline consent has been granted within the last five years, or, within 1.6km of the location of a previous pharmacy application refused within the last five years. The PSRC therefore did not have grounds to refuse the application by virtue of Regulation 40.

4.1.7 Under Regulation 31 – The PSRC was satisfied that there are no other contractors currently providing pharmaceutical services from the premises to which the application relates, or from adjacent premises. The PSRC therefore did not have grounds to refuse the application by virtue of regulation 31.

4.1.8 Under Regulation 32 – The PSRC was satisfied that the premises are not within an LPS designation. The PSRC therefore did not have grounds to refuse the application by virtue of regulation 32.

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4.1.9 In considering all aspects of Regulation 18, the comments made by the consultation responses and the evidence provided, the PSRC concluded that the pharmacy in nearby Market Lavington and several pharmacies in Devizes offer a reasonable level of choice for patients. There is no evidence to suggest that patients find accessing pharmacies in the nearest towns difficult. With this in mind the Committee, taking into account the rural area, felt there is evidence of reasonable choice.

4.1.10 The PSRC noted that no evidence had been presented to show that groups of the population with protected characteristics had difficulty accessing existing services in the area. It was noted that the applicant refers to the older population living in the area, however, there is no evidence provided on what their need is.

4.1.11 The PSRC determined that the application has not evidenced an unforeseen benefit in the 2018 PNA which needs to be addressed. It was agreed that the application focuses on a specific area that does not have a pharmacy, however, there is nothing to evidence that this presents a challenge for patients accessing pharmaceutical services. It was agreed that the application makes no attempt to demonstrate innovation.

4.1.12 The PSRC therefore agreed that the application must be refused on the grounds that it did not pass the tests of Regulation 18 of the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013.

4.1.13 The relevant health and Wellbeing Board Pharmaceutical Needs Assessment and any supplementary statements can be found here: http://www.wiltshire.qov.uk/public-healthintelliqence

4.2 BOOTS UK LTD

4.2.1 Boots UK Ltd agree with the decision made by NHS England Area Team Committee.

4.2.2 Whilst there are a few amenities in West Lavington, but Boots UK Ltd do not believe that they are sufficient to meet the everyday needs of the residents. West Lavington is situated on a "through route" to Devizes and Boots UK Ltd believe many residents would be accustomed to traveling away from the village to access a wealth of further amenities in Devizes and/or to access their place of work. Looking at the 2011 Census data, car ownership in West Lavington is high with less just over 85% of the population having access to a car or van [sic]. Public transport is also available for anyone who chooses not to use their own transport.

4.2.3 The appellant has failed to provide any evidence of the difficulty experienced by patients who share protected characteristics when trying to access pharmaceutical provision. Just because a locality may have a higher elderly population, it does not necessarily mean that they are having difficulty accessing pharmaceutical provision. For anyone who may chose not to access pharmaceutical provision by car or public transport, Boots UK Ltd understand that the nearest pharmacy to the application site, situated in Market Lavington offers a collection & delivery service.

4.2.4 Boots UK Ltd do not believe that the appellant has identified what specific health needs would be met by granting this application.

4.2.5 The applicant has not demonstrated that innovative approaches have been taken with regard to the delivery of services.

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4.2.6 When consulting and preparing the PNA, the assessment is based on the current and future demographics of the area. This a well-established village with no new major housing developments that would change to need for additional provision.

4.2.7 Wiltshire 2018 PNA's concluded that; “Taking into account local demography and the provision of pharmaceutical services in Wiltshire, it is evident that there is adequate provision of such facilities. Services are accessible in a range of locations and in a variety of set ups.”

4.2.8 Boots UK Ltd do not believe that there is an evidenced requirement for an additional pharmacy contract in this locality and respectfully request that the deciding committee dismiss this appeal.

4.2.9 Please be aware that Boots UK Ltd would wish to attend any Oral Hearing that may be required in connection with this application.

4.3 DAY LEWIS PLC

4.3.1 Day Lewis plc continue to object to the proposal to open a pharmacy in West Lavington and wish to make the following comments in response to this appeal.

4.3.2 The initial determination by NHS England

4.3.3 Day Lewis submitted initial representations in respect of this application. Day Lewis have enclosed a copy of those representations with this letter and would ask NHS Resolution to take into account the previous comments when considering this appeal.

4.3.4 Day Lewis wish to specifically highlight the following matter raised during our earlier representations:

4.3.5 Controlled locality and reserved location status

4.3.6 The application has been made for a ‘best estimate of location’ within 450m of Courtyard Surgery, 39 High Street, SN10 4JB. This clearly covers a significant area.

4.3.7 In considering whether the area was reserved for the purpose of determining the application, Day Lewis plc suggested to NHS England that it might seek clarification from the applicant in respect of its proposed location, given the preliminary view that the relevant population size was close to the reserved location threshold. NHS England concluded that it was able to determine the population based on the postcode for Courtyard Surgery and decided that the area was not reserved.

4.3.8 Day Lewis note that the applicant has submitted, with its appeal, a letter suggesting that it has agreed terms for premises within the Costcutter convenience store. The address of this store is 5-19 High St, West Lavington, SN10 4HQ and the premises are located approximately 250m away from the surgery premises.

4.3.9 NHS Resolution may wish to seek an additional patient count centred on the property proposed by the applicant to satisfy itself that the population within 1.6km of this proposed location remains above the 2,750 threshold. In making its decision, it is clear from the minutes of the PSRC meeting that detailed consideration was given to the relevant regulatory tests, in particular those set out in regulation 18(2). The committee was not satisfied that there was any evidence to suggest patients living in the proposed location have difficulties accessing pharmaceutical services at present. It also found that there was no

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evidence that patients sharing protected characteristics had any difficulty accessing pharmaceutical services to meet their specific needs.

4.3.10 The application was therefore refused, properly, by NHS England.

4.3.11 The appeal letter

4.3.12 Day Lewis discuss the points raised by the applicant within its appeal letter in the same order these have been raised below.

4.3.13 In addressing the matter of choice, the applicant disagrees with the decision of NHS England, on the basis “there is no choice of pharmaceutical services within the village of West Lavington”. Day Lewis do not dispute the applicant’s conclusion that there is no pharmacy in the village; this is entirely accurate. However, it is clear that the applicant misunderstands the legal test.

4.3.14 As the applicant suggests, the regulations invite the decision maker to consider choice within the Health and Wellbeing Board (HWB) area. However, the important word within Regulation 18(2)(b)(i) is ‘reasonable’. It is clear that what may constitute reasonable choice in one area may not be reasonable in another, but this is not as simple as having regard to how far away pharmacies may be.

4.3.15 Residents living in rural areas would consider it entirely reasonable that they would have to travel, in some cases, a significant distance, to access many of their daily needs. By contrast, residents in a city would expect to have a range of amenities in close proximity to their home.

4.3.16 West Lavington and Market Lavington are located in a highly rural area on the edge of Salisbury Plain. Whilst the two villages are distinct, the gap between them is less than 500m. Given that the next nearest village or town of any size is Devizes, located more than 5 miles away, it is reasonable to consider that the two villages essentially serve a single population.

4.3.17 The distance from the Costcutter shop highlighted by the applicant to the western edge of Market Lavington is less than 0.6 miles and the distance to Day Lewis pharmacy is approximately 1.1 miles. These locations can be seen on the satellite image (see Appendix B), which also shows Lavington Secondary School, located between the two villages. This school serves pupils living not only in West Lavington and Market Lavington, but also the numerous small villages scattered around the area.

4.3.18 It is particularly notable that there is just one shop in West Lavington, namely the Costcutter store. This includes a post office counter (not a crown post office) and a cash machine.

4.3.19 The applicant listed a number of amenities in its application including a hairdresser (which Day Lewis cannot find any evidence of – Heads on High appears to be based in Devizes) and various other features such as churches and a community hall which have no bearing on the demand for pharmaceutical services. The photographs (at Appendix B) show the village of West Lavington:

4.3.20 The applicant also points out the independent school, Dauntsey’s located in close proximity to its application site. However, it does not appear to have provided any evidence from this school to suggest its staff or pupils have any difficulties accessing pharmaceutical services. As a rural fee paying school, it is highly unlikely that many parents do not have access to a car should they need to access a pharmacy.

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4.3.21 By contrast, the amenities in Market Lavington include a Co-Op, butcher, library, restaurants, hairdresser, coffee shop, florist, pub, and a pharmacy as well as an 87-bed care home. It is very clear, therefore, that residents of West Lavington access Market Lavington for the vast majority of their daily needs. They are accustomed to leaving West Lavington frequently and, for all major purchases, such as a large supermarket shop, they travel to Devizes where there are several pharmacies.

4.3.22 Images of Market Lavington are provided (see Appendix B):

4.3.23 The applicant suggests, in its application, that the population of West Lavington was 1,502 in 2011. What it fails to point out is that this was the population of West Lavington parish the boundaries of which are shown (at Appendix B) with Market Lavington at the north east edge of the boundary

4.3.24 As can be seen, the parish covers a very large area so many of these 1,500 residents live much further away from West Lavington than the distance between West Lavington and Market Lavington. They therefore have to travel to access the limited amenities in West Lavington anyway. The population of West Lavington village itself is clearly substantially lower than 1,500.

4.3.25 Day Lewis would contend, therefore, that the choice offered by the pharmacy in Market Lavington is entirely reasonable in the context of this area. It is also reasonable given that residents who wish to do so can access one of the pharmacies in Devizes when visiting the town.

4.3.26 The applicant goes on to state that “pharmaceutical services are currently difficult to access”. This statement is not supported with any evidence whatsoever. The applicant has not provided any information from local residents suggesting that they have difficulty accessing pharmaceutical services and the GPs at Courtyard Surgery wrote to NHS England expressing their support for the pharmacy in Market Lavington and their concerns about the application by A&H Pharmacies Limited.

4.3.27 The applicant states there is a “high elderly population” yet highlighted in its application, that the percentage of residents over the age of 65 is only marginally higher than the England average. Furthermore, given the size of the Parish area, it is not clear how many of these residents live within relatively close proximity to the proposed site anyway.

4.3.28 The applicant cites the distance from Courtyard Surgery to Day Lewis pharmacy yet has no information in respect of how many patients travel to a pharmacy following a visit to the surgery and what their means of travel might be. NHS England pointed out, in its decision report, that car ownership in the area is very high. Given that there is a free car park opposite the Day Lewis pharmacy in Market Lavington, as well as free on-street parking, the vast majority of people who need to access a pharmacy following a visit to Courtyard Surgery can do so easily. This drive takes less than 5 minutes.

4.3.29 The applicant makes the broad statements that “many of the oldest residents will not drive” but does not define ‘oldest residents’ or attempt to quantify them. No specific evidence has been provided in respect of the number of residents living in West Lavington who are unable or unwilling to drive.

4.3.30 For those who wish to do so, walking from Courtyard Surgery to Day Lewis pharmacy is not particularly onerous and would take around 20-25 minutes. Pavements are provided for the entire length of the journey, providing further evidence that residents move freely between the two villages. Whilst bus services are not especially frequent, they are not unreasonable for a highly

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rural area. Finally, those patients who have difficulties travelling to any pharmacy are able to access the delivery service provided by Day Lewis.

4.3.31 The applicant discusses opening hours and suggests that there is a shortfall in the opening hours provided by Day Lewis compared to the opening hours of Courtyard Surgery. Whilst the opening hours of the surgery are 8am to 6.30pm, appointments are actually offered from 8.30am in the morning and the last appointment is 5.50pm. The opening hours of Day Lewis pharmacy (9am to 6pm) cater for the vast majority of patients and, on request from the surgery, the pharmacy will stay open to see the last patient of the day if necessary. No complaints have been made by Courtyard Surgery in respect of the opening hours of the pharmacy.

4.3.32 The applicant discusses the specific needs of dementia patients but none of the services it proposes are innovative in the context of a regulation 18 application or are different to anything currently provided by Day Lewis at present.

4.3.33 Conclusion

4.3.34 In conclusion, the applicant has failed to demonstrate that the application meets the requirements of Regulation 18.

4.3.35 It has provided no evidence to support many of its assertions. It has significantly over-estimated the population of the village and has made much of the amenities which essentially amount to a shop and a pub.

4.3.36 The existing pharmacy is a very short distance away in the context of a highly rural area and, as highlighted by NHS England, it is no busier than the average pharmacy is England. Its opening hours fully meet the needs of local residents. There is simply no need for another pharmacy in the area.

4.3.37 Should NHS Resolution decide to hold an oral hearing Day Lewis can confirm that they would wish to attend.

In a letter to NHS England dated 24 August 2018, Day Lewis plc stated:

4.3.38 Controlled locality and reserved location status

4.3.39 Day Lewis note that NHS England have confirmed that the locality is controlled and that their preliminary view on the number of patients within 1.6km is that the number is close to the reserved location threshold. Given that the applicant has provided a very wide area (900m wide) as its best estimate it is very likely that the actual number will change significantly depending on where within that area a pharmacy might open.

4.3.40 NHS England states that this patient number is 2,932 (on 23rd July 2018) but we assume this number has been determined by measuring 1.6km from Courtyard Surgery itself. This takes in a large part of Market Lavington which is much more populous than West Lavington.

4.3.41 If the applicant opens 450m to the west of the surgery location, the population number would be much smaller and, almost certainly, below the 2,750 threshold for a reserved location.

4.3.42 Given that the consideration of whether the area is or is not reserved is a critical matter NHS England must have regard to, Day Lewis would suggest that it should request that the applicant provides a much more accurate estimate of best location so this matter can be properly assessed.

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4.3.43 Day Lewis do not believe NHS England is in a position to determine this application properly without a high level of confidence is respect of whether the proposed location is, or is not, reserved, not least because it is required to consider the matter of prejudice to NHS services if the area is not reserved.

4.3.44 Regulation 18

4.3.45 The applicant has made a number of statements regarding the area in which it proposes to open a pharmacy. However, there is very little in the way of evidence that there is any shortfall in the current provision of pharmaceutical services.

4.3.46 The applicant lists various amenities but it is clear that shopping facilities in the village are very limited and that residents travel further afield to access the majority of their daily needs. For those who require pharmaceutical services these are provided by Day Lewis pharmacy in Market Lavington where the majority of shops in the area are located or the larger town of Devizes where there are several pharmacies.

4.3.47 In its letter dated 11 May, which is considered the extent of the controlled locality, NHS England made various statements about the nature of West Lavington:

4.3.47.1 West Lavington has the feel of a small village concentrated along a small High Street

4.3.47.2 surrounded by rural landscape

4.3.47.3 It was noted that there is an independent day and boarding school in the middle of the village, however, it is felt that this did not affect the isolated rural feel of the community in general.

4.3.47.4 There is not a great deal of opportunity available for employment in West Lavington

4.3.47.5 It was agreed that the figure is low and indicates that people travel outside the area to go to work.

4.3.47.6 The provision of other facilities, such as recreational and entertainment; it was noted that there is one pub and a village hall but very little else.

4.3.48 These findings clearly paint the picture of a small rural village with residents who would expect to travel to access amenities in larger villages and towns.

4.3.49 West Lavington is an affluent village whose residents are healthy and mobile. There is no evidence provided by the applicant that existing pharmaceutical services do not meet their needs.

4.3.50 The applicant provides various data relating to the 2011 census (now at least 7 years out of date) and other statistics relating to the whole of Wiltshire which are too broad to be of use to NHS England.

4.3.51 In summary the information provided by the applicant falls well short of the level of evidence required to demonstrate the need for an additional pharmacy in the area. On the absence of clear evidence, NHS England will not be in a position to approve the application.

4.4 L ROWLAND & CO (RETAIL) LTD

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4.4.1 L Rowland & Co (Retail) Ltd would like to make the following observations on the appeal in addition to the comments they have previously supplied under the NHS England consultation process:

4.4.2 On page 2 of the appeal letter the appellant states that they "believe that older patients ... have difficulties accessing services ...” However there is no evidence to support this belief. Clearly patients are currently accessing services yet there is no acknowledgment of this nor is there any detail regarding how these patients currently access services or examples of difficulties encountered.

4.4.3 The ONS/ NOM IS data for the parish of West Lavington includes statistics on the local area taken from the 2011 census (https://www.nomisweb.co.uk/reports/localarea?compare=1170220960):

4.4.3.1 Of the 1502 residents in the parish just 17.4% are aged 65 or over (161 people). The statistic questions why older people are singled out in the appeal letter.

4.4.3.2 Only 5.5% of residents state that their day-to-day activities are restricted a lot (83 people) while 88.4% of people state that they are in very good or good health (1328 people).

4.4.3.3 14.9% of homes in the parish have no car. This is considerably less than the national average.

4.4.4 There is nothing in the documentation to suggest that the local area is undergoing significant housing or population growth that would indicate that a pharmacy is now required.

4.4.5 L Rowland & Co (Retail) Ltd believe that these points indicate that NHS England was correct in refusing this application as there is no need.

4.4.6 L Rowland & Co (Retail) Ltd respectfully request that the NHS Resolution inform them of the outcome in due course.

In a letter to NHS England dated 20 August 2017 L Rowland & Co (Retail) Ltd stated:

4.4.7 Thank you for your email dated 31 July 2018 regarding re-notification of the above application due to a request to make a controlled locality determination of the area by NHS England.

4.4.8 L Rowland & Co (Retail) Ltd note this is an unforeseen benefits routine application and should one be required would be willing to attend any oral hearing in relation to the above application to express their written comments verbally.

4.4.9 L Rowland & Co (Retail) ltd wishes to make the following comments:

4.4.10 L Rowland & Co (Retail) Ltd realise that the assessment of rurality has been addressed and the location has now been defined as a controlled locality. L Rowland & Co (Retail) Ltd would like to reiterate their other previous comments submitted on the 23 October 2017 as they believe they still remain valid.

In a letter to NHS England dated 20 October 2017 L Rowland & Co (Retail) Ltd stated:

4.4.11 Thank you for your email dated 15th September 2017 regarding notification of the above application.

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4.4.12 L Rowland & Co (Retail) Ltd note this is an unforeseen benefits routine application and should one be required would be willing to attend any oral hearing in relation to the above application to express their written comments verbally.

4.4.13 L Rowland & Co (Retail) Ltd wishes to make the following comments:

4.4.14 L Rowland & Co (Retail) Ltd note that this application relates to a rural area of Wiltshire. L Rowland & Co (Retail) Ltd are unaware of any recent assessment of rurality and request NHS England looks into this issue, particularly given the low number of residents stated in the application, before reaching a decision.

4.4.15 The GP practice accepts patients from a wide area and therefore some of these patients will be located closer to services In Market Lavington and Devizes than may be inferred from the application.

4.4.16 L Rowland & Co (Retail) Ltd further note that:

4.4.16.1 The pharmacy in Market Lavington operates a collection and delivery service which mitigates the need for a pharmacy in West Lavington.

4.4.16.2. A pharmacy was previously located in the village and closed L Rowland & Co (Retail) Ltd assume that this was because it was uneconomic to operate.

4.4.17 Because of the above L Rowland & Co (Retail) Ltd question the need for a pharmacy in this location and suggest that the application should be refused.

4.5 WILTSHIRE LPC

Reserved Location

4.5.1 LPC members note that West Lavington is in a controlled locality.

4.5.2 None of the GP Practices in the Devizes Community Area dispense to patients. All patients resident in West Lavington are most likely to be accessing Pharmaceutical Services through local or other pharmacies.

4.5.3 Members note that the 1.6km radius for determination of reserved location includes housing around the existing Market Lavington Pharmacy (which is 1.45km from the best estimate postcode as the crow flies).

4.5.4 NHS England determines that there are now 2932 registered patients within 1.6km of the best estimate location. (2863 at the time of the original application).

4.5.5 For the above reasons, the committee do not believe that this is a reserved location.

Prejudice

4.5.6 The LPC does not have evidence to present regarding prejudice, but would like to express concern about the viability of rural pharmacy and GP services in the current financial climate of the Health Service.

Consideration of the Application/Appeal

4.5.7 The applicant appears to base the appeal on their opinion that choice is not reasonable for residents of West Lavington.

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4.5.8 Members of the LPC agree with the writers of the Pharmaceutical Needs Assessment and NHS England that choice is currently reasonable considering the rural nature of the proposed location.

4.5.9 Members of the LPC are concerned that the areas of Market Lavington and West Lavington could not support two pharmacies. The current location in Market Lavington is more convenient for the larger population.

Gradualisation

4.5.10 If this application is granted, then NHS England should identify as a matter of urgency whether any residents are on the dispensing list of any GP Practice and determine any gradualisation period before the applicant gives notice to commence services.

4.6 WILTSHIRE HEALTH & WELLBEING BOARD

4.6.1 This is a response on behalf of the Wiltshire Health and Wellbeing Board in regard to this appeal. The HWB would highlight that the current pharmaceutical needs assessment for Wiltshire can be found here: http://www.wiltshire.gov.uk/public-health-intelligence

4.6.2 The current PNA concludes that there is sufficient pharmaceutical services across the county at this time.

5 Observations

5.1 WM MORRISONS PLC

5.1.1 Wm Morrisons continue to object to the proposal to open a pharmacy in West Lavington and would like NHS Resolution to take on board the previous comments that were previously made [not provided to NHS Resolution].

5.1.2 A&H have commented on the fact ‘there is no choice of pharmaceutical services within the village of West Lavington’ but have not submitted any evidence of this. Also Wm Morrisons disagree that the other ‘Pharmacies are located too far away’ is not to be true. [sic]

5.1.3 Again no evidence has been provided to state the population have difficulty accessing the Pharmaceutical services currently available.

5.1.4 Even though it is an aging population that would not be a sufficient reason to state the people are having problems accessing other available Pharmaceutical services.

5.1.5 Wm Morrisons believe the applicant has not provided sufficient evidence for this application to go through.

5.1.6 Wm Morrisons believe that the appeal should be refused on the grounds it does meet Regulation 18. [sic]

6 Consideration

6.1 The Pharmacy Appeals Committee (“the 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.

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

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6.3 On the basis of this information, the Committee considered it was not necessary to hold an Oral Hearing.

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

6.5 West Lavington is in a controlled locality and the application was based on securing improvements or better access to pharmaceutical services in that controlled locality.

6.6 The Committee considered that the correct course was to first consider if the application must be refused pursuant to Regulation 31. The Committee will then consider if the application must be refused pursuant to Regulation 40. If the Committee is not so required to refuse the application, it will consider the issue of reserved location pursuant to Regulation 41. The Committee will then consider the application under Regulation 18. If the Committee has determined that the Applicant is seeking the listing of pharmacy premises which are in a part of a controlled locality that is not in a reserved location, it will consider the issue of prejudice under Regulation 44 last. The reason for this staged approach and in particular for dealing with prejudice last is that if the application does not meet the requirements of Regulation 18 the Committee is required to refuse it and prejudice cannot arise. The potential for prejudice only arises if the Committee has concluded that the application meets the requirements of Regulation 18 and may be granted.

Regulation 31

6.7 The Committee first considered Regulation 31 of the Regulations which states:

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

(2) This paragraph applies where -

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

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

(ii) adjacent premises; and

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

6.8 The Committee noted that the Applicant had stated, in their application form, that Regulation 31 was not applicable as the nearest pharmacy is 1.4 miles away in Market Lavington. The Committee noted that NHS England had considered Regulation 31 and had concluded that there are no other contractors providing pharmaceutical services from the premises to which the application relates or from adjacent premises. The Committee further noted that no information had been provided by any party to indicate that Regulation 31 would require the refusal of this application. Given the information available to the Committee it determined that it was not required to refuse the application under the provisions of Regulation 31.

6.9 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

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the location then provided would (had it been known now) have led to the application being refused under Regulation 31.

Regulation 40

6.10 In those circumstances, the application (which is made under Regulation 18 of the Regulations) must be assessed against the provisions of Part 7 of the Regulations and, in particular Regulation 40 which reads:

(1) This paragraph applies to all routine applications—

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

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

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

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

where the applicant is seeking the listing of pharmacy premises which are in a controlled locality.

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

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

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

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

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

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

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

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

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

(3) For the purposes of paragraphs (1) and (2), if no particular premises are proposed for listing in A1, the applicant is to be treated as seeking the listing of pharmacy premises at the location which is the best estimate that the NHSCB is able to make of

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where the proposed listed pharmacy premises would be, having regard to the best estimate given by the applicant under paragraph 1(7)(a)(ii) of Schedule 2.

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

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

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

Regulation 41

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

(1) This paragraph applies to any routine application—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) for the reasons relating to prejudice in—

(i) regulation 44(3),

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

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

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

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

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

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

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

6.13 The Committee considered the issue of reserved location for premises described in the application.

6.14 The Committee noted that, as at the date of the application, NHS England had provided a patient count of 2,863 and that the appellant had not sought to challenge NHS England’s position that West Lavington is not a reserved location.

6.15 The Committee noted the comments from parties with regard to the location of the proposed site and how this may have affected the patient count. The Committee noted

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that NHS England, in their decision, had stated that they had sought further clarification from the Applicant with regard to the location of the premises and that the patient count had been taken based on this information. The Committee noted that whilst it has been asserted that NHS Resolution may wish to seek an additional patient count, there was nothing provided by parties to argue that the circumstances that pertained on the day on which the application was received would lead NHS England to conclude that the location of the application was in a reserved location.

6.16 Taking all of the information before it into consideration, the Committee concluded that West Lavington is not a reserved location.

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

Regulation 18

6.18 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

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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)."

Regulation 22

6.19 As a preliminary matter, the Committee was required to consider Regulation 22, which states:

"(1) If the NHSCB receives a routine application to which regulation 19(6) does not apply, the NHSCB must refuse it unless granting it, or granting it in respect of some only of the services specified in it, would- 25

(a) meet a current or future need for pharmaceutical services, or pharmaceutical services of a specified type, in the area of the relevant HWB that has been included in the relevant pharmaceutical needs assessment in accordance with paragraph 2 of Schedule 1; or

(b) secure (including in the future) improvements, or better access, to pharmaceutical services, or pharmaceutical services of a specified type, in the area of the relevant HWB that have or has been included in the relevant pharmaceutical needs assessment in accordance with paragraph 4 of Schedule 1.

(2) For the purposes of paragraph (1), the relevant pharmaceutical needs assessment is-

(a) the pharmaceutical needs assessment of the relevant HWB that is current at the time that the NHSCB takes its decision to grant or refuse the application, unless in the opinion of the NHSCB (or on appeal the Secretary of State) the only way to determine the application justly is with regard to an earlier pharmaceutical needs assessment, in which case the relevant pharmaceutical needs assessment is that earlier assessment; or

(b) if the relevant HWB has not published a pharmaceutical needs assessment, the pharmaceutical needs assessment of a Primary Care Trust (as extended by regulation 7(1)) that relates to the locality in which the location or premises to which the application relates is or are situated."

6.20 The Committee noted that the application was dated 12 June 2017 and was for “unforeseen benefits” as set out in Regulation 18. NHS England received the application in June 2017 however following a request to make a controlled locality determination of the area a rurality review was undertaken and the application was put on hold.

6.21 The Committee noted that the Applicant had been notified by NHS England that the application would be considered under the 2018 PNA rather than the 2015 PNA. Further, the Committee noted that the Applicant had been given the opportunity to provide reasons as to why the application should be considered under the 2015 PNA rather than the 2018 PNA however the Applicant had confirmed that they had reviewed the 2018 PNA and did not wish to comment. The Committee noted that NHS England had considered the application against the 2018 PNA and that no party had sought to argue that the application should be considered against the 2015 PNA.

6.22 The Committee noted that it had been brought to the attention of parties that the application had been made under the 2015 PNA but that NHS England had decided the application on the basis of the Wiltshire 2018 PNA.

6.23 The Committee noted all comments received by NHS England for its original determination relate to the 2018 PNA as the application was circulated, for the second time by NHS England, after the 2018 PNA came into force.

6.24 NHS England determined the application against the 2018 PNA and this point has not been appealed against by the Applicant.

6.25 The Committee therefore confirmed the position of NHS England that the application should be considered against the 2018 PNA.

6.26 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

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6.27 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.

6.28 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).

6.29 The Committee considered the Pharmaceutical Needs Assessment ("the PNA") prepared by Wiltshire Health and Wellbeing Board, 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 January 2018 and that no supplementary statements had been issued.

6.30 The Committee noted that the PNA had split the area of Wiltshire into 20 community areas for consideration and that the village of West Lavington falls within the Devizes community area. The Committee noted that the PNA had considered the pharmaceutical needs of Wiltshire as a whole and whilst West Lavington is within the Devizes community area this provided information as to the facilities that are there as well as statistics with regard to specific diseases.

6.31 The Committee noted that the PNA had concluded that “Taking into account local demography and the provision of pharmaceutical services in Wiltshire, it is evident that there is adequate provision of such facilities. Services are accessible in a range of locations and in a variety of set ups.”

6.32 The Committee noted that the Applicant seeks to provide unforeseen benefits to the residents of West Lavington. The Committee noted that the improvements or better access that the Applicant was claiming would be secured by its application were not included in the relevant pharmaceutical needs assessment in accordance with paragraph 4 of Schedule 1.

6.33 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)

6.34 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"

6.35 The Committee noted that NHS England had concluded that the application would not cause significant detriment to the proper planning in respect of the provision of pharmaceutical services in the area of the relevant HWB. The Committee noted that this had not been disputed either on appeal or in subsequent representations either by the Applicant or interested parties.

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6.36 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.

6.37 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)

6.38 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"

6.39 The Committee noted that NHS England had concluded that granting the application would not cause significant detriment to the arrangements in place for the proper provision of pharmaceutical services in the area. The Committee noted that this had not been disputed by any party either on appeal or in subsequent representations. On the basis of the information available, 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.

6.40 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)

6.41 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—

(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"

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

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6.42 The Committee noted the comments from the Applicant that there is no pharmacy in West Lavington and therefore there is no choice of pharmaceutical services for those living in West Lavington. The Committee was mindful that consideration needs to be given as to whether there is a reasonable choice in obtaining pharmaceutical services in the area of the relevant HWB. The Committee noted the information from parties and the map provided by NHS England that the nearest pharmacy is located approximately 1.4 miles away from the proposed site in Market Lavington and that this is located in the vicinity of existing medical provision in the area. The Committee further noted that there are an additional 3 pharmacies within 5 miles of the proposed site which are located in Devizes, which are operated by different contractors.

6.43 The Committee noted the distances to the nearest pharmacy as quoted by NHS England, the Applicant and parties. Given the information with regard to distance and from viewing the map provided by NHS England, the Committee was of the view that it was unlikely that those in West Lavington would choose to access services outside of West Lavington on foot, however the Committee did note the comments from parties that it was possible to walk to the nearest pharmacy in Market Lavington. The Committee was of the view, however, that difficulties of access on foot did not of itself indicate that there was not reasonable choice in obtaining pharmaceutical services. The Committee went on to consider the ease of access to the nearest pharmacies by private and public transport.

6.44 With regard to access by private transport, the Committee noted the comments with regard to car ownership and noted that just over 85% of the population have access to a car or van. The Committee noted the comments from parties with regard to the location of West Lavington, in that it is situated along a main road which provides easy links for those in West Lavington to access pharmaceutical services in Devizes and Trowbridge. The Committee further noted the comments from parties that there are no difficulties in accessing the existing pharmacies for those who have access to their own transport and that there is parking available at the pharmacy in Market Lavington. The Committee concluded, from the information before it that there appeared to be a relatively high level of mobility and car ownership in the area. The Committee was of the view that for those who had their own transport there was nothing provided to demonstrate that they were experiencing any difficulties in accessing the existing pharmaceutical provision.

6.45 The Committee noted the comments from NHS England that there are regular bus services running through West Lavington to and from Devizes and Trowbridge as well as community transport services being available in the area. The Committee noted the bus timetables, as provided by the Applicant, and noted that these are dated February 2012. The Committee noted the comments from the Applicant with regard to public transport in the area, however the Committee was mindful of the high car ownership within the area and the impact that this would have on public transport. The Committee accepted that there may not be any buses that run directly to the nearest pharmacy, however the Committee was mindful that it is reasonable choice within the area of the HWB and not necessarily how patients can get to the nearest pharmacy. The Committee noted that the buses run through West Lavington to Devizes and Trowbridge where there are pharmacies. The Committee was of the view, given the information before it, that there was nothing provided which demonstrated that those who did use public transport were experiencing any difficulties in access the existing pharmaceutical provision.

6.46 The Committee noted the comments from all of the parties with regard to the facilities in the area and noted the comments from the Applicant that those in West Lavington did not necessarily need to leave the area on a daily basis. The Committee noted that this had been disputed by parties that whilst there were facilities in the area, those referred to by the Applicant were not large or various enough to sustain the population on a daily basis without the need for them to leave the area to supplement the facilities that were available to them. The Committee was of the view that there are services in the area of West Lavington, such as the Costcutter, however these are limited. Given

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the nature of the area, together with the public transport links level of private transport, the Committee was of the view that the population was relatively mobile that would leave West Lavington on a regular basis to go to work, to access a variety of services in Market Lavington and Devizes and further afield including the larger supermarkets in the area, the town centres and the medical practices, where there were pharmacies located, which provided choice in obtaining pharmaceutical services in the area of the HWB.

6.47 On the information available, 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.

6.48 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. The Committee noted the comments and information from the Applicant with regard to the demographics of the population that are resident in the village of West Lavington that share a protected characteristic. The Committee noted the comments from the Applicant with regard to Dauntsey School, however the Committee noted that no further information had been provided as to why those attending a private school were having difficulty in accessing pharmaceutical services that meet their specific needs. The Committee also noted the comments from the Applicant with regard to the care homes in the area, however no further information had been provided as to why those in the care home were having difficulty in accessing pharmaceutical services that were specific for their needs. The Committee further noted in the PNA that services were already being provided to care homes in the area and that no gap in this provision had been identified. The Committee accepted that there are always people in an area who share a protected characteristic and was of the view that whilst a pharmacy located at the proposed site may be a benefit to some people, there was no information provided by the Applicant as to why this was a significant benefit or how those with a protected characteristic were currently experiencing any difficulties in accessing pharmaceutical services. 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.

6.49 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. The Committee noted that the Applicant had provided no information with regard to innovation in their application however noted that, in their appeal, the Applicant had sought to argue that their proposal to work with local care providers and Dementia UK does in fact demonstrate innovation of service to meet a local need. The Committee considered that such a service should be available to all patients at any time during the pharmacy’s opening hours and that offering medicines in “dosette boxes” should be done by all pharmacists as part of their terms of service and professional obligations. The Committee was of the view that providing services expected of a pharmacist where there currently are none is not of itself innovative. 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.

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Regulation 18(2)(b) generally

6.50 The Committee noted that the Applicant was proposing to open for a total of 52 hours a week, of which 41.5 hours would be core hours. The Committee noted that the core hours were arranged so that provision would be available from 8am to 12noon and 2:30pm to 6:30pm Monday to Friday with supplementary hours being from 12noon to 12:30pm and 1:30pm to 2:30pm Monday to Friday as well as 9am to 12 noon on a Saturday. The Committee noted that the Applicant was not proposing any hours, either core or supplementary, on a Saturday afternoon or a Sunday. The Committee noted the comments from the Applicant that these hours are to provide cover to match the opening hours of the surgery. The Committee noted the comments from the pharmacy in Market Lavington that the first appointment at the surgery is at 8:30am with the last appointment being at 5:30pm and that the pharmacy would, by request from the surgery, remain open to ensure that the last patient of the day could obtain pharmaceutical services if necessary. 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 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.

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

Regulation 44 – Prejudice

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

6.53 The Committee has already indicated that if the application does not meet the requirements of Regulation 18 then the Committee is required to refuse it and prejudice cannot arise. The potential for prejudice only arises if the Committee has concluded that the application meets the requirements of Regulation 18 and may be granted. As indicated above, the Committee has determined that the application does not meet the requirements of Regulation 18 and therefore the Committee considered that consideration of prejudice was not required.

Other considerations

6.54 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).

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

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

6.57 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 better access to pharmaceutical services.

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

6.58.1 confirm NHS England’s decision;

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

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6.58.3 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.

6.59 In those circumstances, given that the Committee has not made a determination in respect of Regulation 44, the Committee determined that the decision of NHS England must be quashed.

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

6.61 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.

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

7 DECISION

7.1 The Pharmacy Appeals Committee (“Committee”), appointed by NHS Resolution, quashes the decision of NHS England, for the reasons given above, and redetermines the application.

7.2 The Committee concluded that West Lavington is in a controlled locality and that the site of the application is not in a reserved location.

7.3 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;

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

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

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

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

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

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

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

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

Jill Jackson Case Manager Primary Care Appeals

A copy of this decision is being sent to:

A&H Pharmacies Ltd Boots UK Ltd Day Lewis plc L Rowland & Co (Retail) Ltd Swindon & Wiltshire LPC Wiltshire Health & Wellbeing Board PCSE on behalf of NHS England – South West

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