8 May 2019 Merrion Way Leeds REF: SHA/21044 LS2 8PA

Arena Point 8 May 2019 Merrion Way Leeds REF: SHA/21044 LS2 8PA

APPEAL AGAINST NHS ENGLAND, SOUTH EAST AREA Tel: 0203 928 2000 Fax: 0207 821 0029 TEAM, NHS COMMISSIONING BOARD ("NHS Email: [email protected] ENGLAND") DECISION TO REFUSE AN APPLICATION BY ASCENT HEALTHCARE LTD FOR INCLUSION IN THE PHARMACEUTICAL LIST OFFERING IDENTIFIED IMPROVEMENTS OR BETTER ACCESS UNDER REGULATION 17 AT THE SHOPPING PRECINCT, FARNHAM DRIVE, CAVERSHAM VILLAGE PARK, READING, RG4 6NY

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

Arena Point REF: SHA/21044 Merrion Way Leeds APPEAL AGAINST NHS ENGLAND, SOUTH EAST AREA LS2 8PA TEAM, NHS COMMISSIONING BOARD ("NHS ENGLAND") DECISION TO REFUSE AN APPLICATION Tel: 0203 928 2000 BY ASCENT HEALTHCARE LTD FOR INCLUSION IN Fax: 0207 821 0029 Email: [email protected] THE PHARMACEUTICAL LIST OFFERING IDENTIFIED IMPROVEMENTS OR BETTER ACCESS UNDER REGULATION 17 AT THE SHOPPING PRECINCT, FARNHAM DRIVE, CAVERSHAM VILLAGE PARK, READING, RG4 6NY

1 The Application

By application dated 25 November 2017, Ascent Healthcare Ltd (“the Applicant”) applied to NHS Commissioning Board (“NHS England”) for inclusion in the pharmaceutical list offering identified improvements or better access under Regulation 17 at the Shopping precinct, Farnham Drive, Caversham Village Park, Reading, RG4 6NY. In support of the application it was stated:

1.1 In the Applicant’s view this application should not be refused pursuant to Regulation 31 as the Applicant does not operate any other pharmacy in this area therefore Regulation 31 does not apply.

In response to “Information in support of the application” the Applicant states that they are making this application seeking to secure the improvements or better access identified on pages 4, 42, 49 and 52 of the HWB’s pharmaceutical needs assessment.

1.2 The PNA states at page 4,

Key findings

1.2.1 Although 95% of residents are within 15 minutes walk of a pharmacy during normal working hours, residents in parts of Whitley, Mapledurham, and Thames wards and a small area of Peppard ward are not within walking distance of a pharmacy either within or outside the borough.

1.3 And at page 42

2. Access to pharmacy services within Reading

1.3.1 95% of Reading residents are able to access a Reading-based pharmacy within a 15 minute walk and a further 1% can access a pharmacy outside of the borough within this time. Map 7 illustrates the population that can access any pharmacy, inside or outside of Reading, within a 15 minute walking time. It is important to note that this level of accessibility does reduce to 28% on weekday evenings (after 7pm) and to 31% on Sundays. This does not take into account opening hours of pharmacies in neighbouring authorities, which Reading Borough residents would also be able to access. However, residents in parts of Whitley, Mapledurham, and Thames wards and a small area of Peppard ward are not within walking distance of a pharmacy either within or, outside the borough.

1.4 And at page 49

F: Assessment of pharmaceutical service provision

1.4.1 Although 96% of Reading residents are within a 15 minute walk of a pharmacy in normal working hours; however, some residents in parts of Whitley, Mapledurham, and Thames wards and a small area of Peppard ward are not within walking distance of a pharmacy either within or outside the borough.

1.5 And at page 52

G: Conclusions

1.5.1 5. Opportunities for improvements and/or better access to pharmaceutical services

1.5.2 Conclusion: Based on the information available at the time of developing this PNA, there is opportunity to improve access to essential services for residents living in Mapledurham, Thames, Whitley and Peppard wards. [emphasis added by Applicant]

In response to how the Applicant intends to secure the identified improvements or better access either in whole or in part, the Applicant stated:

1.6 The Applicant therefore submits an application under regulation 17 at the Shopping Precinct Farnham Drive, Caversham Village Park, Reading, RG4 6N to secure the identified improvement or better access in full.

1.7 The proposal site falls within the small area of Peppard ward where residents are not within walking distance (i.e. further than 15 minutes' walk) of a pharmacy either within or outside the borough.

1.8 Therefore, residents within this small area of the Peppard Ward will have access to pharmacies within walking distance

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

1.10 The Applicant therefore asks NHS England to approve this application.

2 The Decision

NHS England considered and decided to refuse the application. The decision letter dated 22 November 2018 states:

2.1 NHS England have considered the above application and I am writing to confirm that it has been refused.

2.2 Please find attached decision report.

2.3 Applications to be determined under the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 (the “Regulations”), as amended

2.4 Identified improvement or better access / Ascent Healthcare Limited

2.4.1 Shopping Precinct Farnham Drive, Caversham Village Park, Reading RG4 6NY 2.4.2 Berkshire West CCG / Reading HWB

2.5 An Identified Improvement or Better Access application had been received from Ascent Healthcare Ltd, on 12th December 2017. The application was put on hold whilst rurality of this area was reviewed; the rurality of this area was re-determined on 2nd May 2018 as non-controlled.

2.6 The Committee was now required to consider the application in accordance with Regulations 17 and 19 of the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013, as amended.

CONSIDERATION

2.7 The Committee considered the following:

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

2.7.2 The application form provided by the applicant –

2.7.2.1 The Committee noted that the applicant was proposing to provide essential, enhanced and advanced services, if commissioned.

2.7.2.2 The applicant also proposed core opening of 40 hours per week (Monday to Friday 09:00-13:00 & 13:30-17:30) and total proposed opening of 46 hours per week between Monday 09:00 to Saturday 12:30.

2.7.2.3 The Committee considered the applicant’s statement as to how they intend to secure identified improvements or better access either in whole or in part. The Applicant has stated:

2.7.2.3.1“We therefore submit an application under regulation 17 at the shopping precinct Farnham Drive, Caversham Village Park, Reading, RG4 6NY to secure the identified improvement or better access in full.

2.7.2.3.2The proposal site falls within the small area of Peppard ward where residents are not within walking distance (i.e. further than 15 minutes’ walk) of a pharmacy either within or outside the borough

2.7.2.3.3Therefore, residents within this small area of the Peppard ward will have access to pharmacies within walking distance.

2.7.2.3.4In addition to providing dispensing services, the pharmacy would provide all other essential, advance and enhanced services that are commissioned by NHS England or the local authority. Providing access to these services will be of significant benefit for patients, particularly those who may have difficulty in accessing other parts of the area, such as the elderly, infirm disabled, or parents with young children (i.e. those who share protected characteristic).”

2.7.2.4 The information submitted by the Applicant along with the application indicates that the Applicant proposes to provide pharmaceutical services to the residents of the Peppard ward from the best estimate location.

2.7.2.5 That in the application the applicant had referenced paragraphs from the draft Reading PNA 2018-21, which was out for public consultation at the time of submitting the application. 3

2.7.3 The Report and annexes prepared by Primary Care Support England (PCSE) and NHS England.

2.7.3.1 The Committee noted that the applicant’s fitness to practise was approved on 24th November 2017 by NHS England, East and West Midlands.

2.7.3.2 All additional information, including location, opening times and distances of surrounding pharmacies and GP Surgeries were noted and considered by the Committee.

2.7.3.3 The current PNA; Reading Pharmaceutical Needs Assessment 2018- 2021

2.7.4 The Committee considered the representations made by Manichem Ltd, Lloyds Pharmacy Ltd, Thames Valley LPC, Superdrug Stores Plc, L Rowland & Company (Retail) Ltd, Day Lewis PLC, Boots UK Ltd – and noted the comments made by the interested parties.

2.7.5 The Committee also considered the additional comments made by the applicant (Ascent Healthcare Ltd).

2.7.6 Department of Health guidelines on market entry by means of pharmaceutical needs assessment – Chapter 7 – improvements or better access to services

2.7.7 Regulation 31 – Refusal: same or adjacent premises, which states: [Regulation quoted in full]

2.7.8 The Committee considered Regulation 31(2)(a)(i) and was of the view that Regulation 31(2)(a)(i) is not met as there is currently no person on the pharmaceutical list at the premises to which the application relates.

2.7.9 The Committee went on to consider paragraph 31(2) (a)(ii) of Regulation 31(2); whether there is a person on the pharmaceutical list providing pharmaceutical services from adjacent premises

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

2.7.11 The Committee was satisfied that there is no pharmacy providing pharmaceutical services at the same or adjacent premises. The application did not therefore need to be refused in accordance with Regulation 31.

2.7.12 The Committee decided that it was not necessary to hold an oral hearing before determining the application.

DECISION

2.8 Having considered the application, representations received and all additional information, the Committee determined to refuse the application.

REASONS FOR DECISION

2.9 The reasons for this decision are as follows:

2.10 The application (which was to be determined in accordance with the procedures in Schedule 2 to the Regulations) was submitted by the Applicant based on providing improvements, or better access, identified in the pharmaceutical needs assessment (pursuant to Regulation 17).

2.11 The Committee considered whether the purported improvements or better access, on which the Applicant based its application, satisfied the elements of Regulation 17(1) [quoted in full]:

2.12 Paragraph 4(a) of Schedule 1, reads as follows:

"A statement of the pharmaceutical services that the HWB has 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 (whether or not they were located in the area of the HWB), secure improvements to, or better access to, pharmaceutical services, or pharmaceutical services of a specified type, in its area.”

2.13 The Committee noted in the initial application form, that the Applicant has focused on pages 4, 42, 49, and 52 of the Draft Reading PNA 2018-21, where the improvements or better access which the Applicant seeks to address, have been identified.

2.14 The Committee also noted that the applicant subsequently referenced extracts from the final published Reading PNA 2018-21 in their response to the representations received.

2.15 The Committee considered that Regulation 22(2)(a) indicates that the relevant PNA to be considered is the PNA of the relevant HWB that is current at the time the decision to grant or refuse the application is made. The Committee noted that Regulation 22(2)(a) enabled an earlier PNA to be considered but only if, in the opinion of the decision maker, the only way to determine the application justly is with regard to the earlier PNA. The Committee noted that Regulation 22 did not enable the decision- maker to take into account a draft future PNA.

2.16 The Committee noted page 4 of the final published Reading PNA 2018-21 states under the heading “Key Findings”:

“All Pharmacies are open on weekdays and there is relatively good provision on weekday and Saturday evenings for the majority of residents All residents are within a 10 minute drive of a pharmacy when services in neighbouring boroughs are taken into account; however there are no pharmacies in Mapledurham or Thames ward and no services open on evenings or Sundays in Whitley or Church wards.

Although 95% of residents are within a 15 minute walk of a pharmacy during normal working hours, residents in parts of Whitley, Mapledurham, and Thames wards and a small area of Peppard ward are not within walking distance of a pharmacy during normal working hours. However, it is important to note that all residents are within a 20 minute drive, which meets a key NHS standard for accessibility.”

2.17 The Committee noted page 43 of the final published Reading PNA 2018-21 states under the heading “Access to pharmacy services within Reading”

“All residents of Reading are able to access a pharmacy or dispensing practice within a 10 minute drive, if neighbouring authorities’ pharmacy provision is taken into account. This is illustrated in Map 6. This level of accessibility by car reduces slightly on weekday evenings (after 7pm) and on Sundays, however all residents can reach a pharmacy within a 15 minute drive at these times. 81% of the population can access a pharmacy within a 20 minute cycle.

95% of Reading residents are able to access a Reading-based pharmacy within a 15 minute walk and a further 1% can access a pharmacy outside of the borough within this time. Map 7 illustrates the population that can access any pharmacy, inside or outside of Reading, within a 15 minute walking time. It is important to note that this level of accessibility does reduce to 28% on weekday evenings (after 7pm) and to 31% on Sundays. This does not take into account opening hours of pharmacies in neighbouring authorities, which Reading Borough residents would also be able to access. Residents in parts of Whitley, Mapledurham, and Thames wards and a small area of Peppard ward are not within walking distance of a pharmacy, either within or outside the borough, in normal working hours. However, all residents are within a 20 minute drive to a pharmacy, which meets a key NHS standard for accessibility.”

2.18 The Committee noted page 50 of the final published Reading PNA 2018-21 states under the heading of “Assessment of pharmaceutical service provision”

“There is sufficient access to a range of pharmacies during core opening hours and all residents can access a community pharmacy within a 10 minute drive during normal working hours, if neighbouring authorities’ pharmacy provision is taken into account.

96% of Reading residents are within a 15 minute walk of a pharmacy in normal working hours. Some residents in parts of Whitley, Mapledurham, and Thames wards and a small area of Peppard ward are not within a 15-walking distance of a pharmacy either within or outside the borough.”

2.19 The Committee noted page 53 of the final published Reading PNA 2018-21 states under the heading of: “Conclusions: Opportunities for improvements and/or better access to pharmaceutical services”.

“Conclusion: Based on the information available at the time of developing this PNA, there is opportunity to improve access to essential services for residents living in Mapledurham, Thames, Whitley and Peppard wards. However, these residents are able to access pharmaceutical services within a 20 minute drive time, which meets one of the key NHS standards for accessibility.”

2.20 The committee considered whether these paragraphs should be considered to refer to improvements of better access for the purposes of Regulation 17(1)

2.21 The Committee considered access (distance, travelling times and opening hours) as an important factor in determining the extent to which the current pharmaceutical service provision meets the needs of the population in the Peppard wards. It was noted that all residents are within a 20 minute drive to a pharmacy, which is a key NHS Standard for accessibility.

2.22 The Committee noted that residents within a 15 minute walk is not a key NHS Standard for accessibility.

2.23 The Committee was mindful that where it considers there is a need to do so; NHS England has the power to bring about changes to the opening hours of existing pharmacies.

2.24 The Committee was satisfied that the PNA identified improvements or better access which the application was looking to secure in accordance with Regulation 17(1).

2.25 The Committee went on to consider the matters set out in Regulation 17(2).

2.26 Regulation17(2)(a) 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 mentioned in paragraph (1) that the applicant is offering to secure;

2.27 Regulation 17(2)(b) whether it is satisfied that another application offering to secure the improvements or better access mentioned in paragraph (1) has been submitted to it, and it would be desirable to consider, at the same time as the applicant’s application, that other application;

2.28 The committee was not aware of any other applications for the same area.

2.29 Regulation 17(2)(c) whether it is satisfied that an appeal relating to another application offering to secure the improvements or better access mentioned in paragraph (1) is pending, and it would be desirable to await the outcome of that appeal before considering the applicant’s application;

2.30 The committee noted there were no appeals pending relating to another application offering to secure the improvements or better access mentioned in paragraph (1).

2.31 Regulation 17(2)(d) whether it is satisfied that, since the publication of the relevant pharmaceutical needs assessment, there have been changes to the profile of pharmaceutical services in the area of the relevant HWB that are such that refusing the application is essential in order to prevent significant detriment to the provision of pharmaceutical services in that area;

2.32 The Committee was not satisfied for the purposes of Regulation 17(2)(d) that refusing the application was essential in order to prevent significant detriment to the provision of pharmaceutical services in the area of the HWB.

2.33 Regulation 17(2)(e) [quoted in full],

2.34 The Committee considered whether granting the application would secure the improvements or better access in full or in part.

2.35 The applicant proposes to open 09:00-17:30 on weekdays, open between 09:00- 12:30 Saturdays and closed on Sundays.

2.36 The Committee noted that there are twelve pharmacies within 2 miles of the proposed address, all of which open longer hours (between 06:30 & 22:30 on weekdays) than the applicant proposes to open.

2.37 Ten pharmacies within 2 miles of the proposed address also open longer hours on Saturdays (between 07:00 & 22:00) than the applicant proposes to open. The applicant is not proposing to open on a Sunday; there are three pharmacy within 2 miles that is open on Sundays between 10:00-17:00.

2.38 There are 28 pharmacies within 5km of the proposed address, two of which are 100 hour pharmacies.

2.39 The committee noted that the final Reading PNA 2018-21 states “a small proportion of Peppard ward are not within walking distance of a pharmacy, either within or outside the borough, in normal working hours.” (pages 43, 50) but the PNA does not go further to say how many people would be affected or taken it a step further and defined for what period after normal working hours would provide an improved benefit.

2.40 The Committee had no information to show that the applicant’s proposed opening hours are required to secure improvements or better access to pharmaceutical services.

2.41 The Committee concluded that the applicants proposed opening times would not meet the identified improvement or better access need that the Reading PNA 2018- 21 proposes.

2.42 Regulation 17(2)(f) [quoted in full] 7

2.43 The Committee is not satisfied that, since the publication of the relevant pharmaceutical needs assessment, the improvements or better access mentioned in paragraph (1) have or has been secured by another person who is providing, or is due to be secured by another person who has undertaken to provide, either in the area of the relevant HWB or in the area of another HWB.

2.44 Regulation 17(2)(g) [quoted in full];

2.45 The final published Reading PNA 2018-21 clearly states on page 53 under opportunities for improvements and/or better access to pharmaceutical service

2.46 The Committee noted that as Regulation 17(2)(g)(i) did not apply, it was not required to consider the undesirable increase in the availability of essential services as set out in Regulation 17(2)(g)(ii).

2.47 Regulation 17(2)(h) [quoted in full]

2.48 The Committee had not been provided with any information to indicate that the application should be deferred or refused by virtue of any provision of Part 5 to 7 of the Regulations.

2.49 The Committee concluded that the Application did not provide an improvement or better access to pharmaceutical service in the Peppard wards compared to the existing pharmaceutical provision.

2.50 The Committee determined that, in the absence of specified circumstances in which the provision of services would secure improvements, or better access to, pharmaceutical services, the provisions of Regulation 17(1) were not met.

3 The Appeal

In a letter dated 21 December 2018, the Applicant appealed against NHS England’s decision. The grounds of appeal are:

3.1 The application falls to be determined pursuant to regulation 17 of the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulation 2013 and must be granted if the requirements of regulation 17 are met.

3.2 The improvements or better access, on which the Ascent Healthcare based its application, satisfies the elements of Regulation 17(1) which reads as follows:

"(1) If –

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

(b) the improvements or better access that would be secured have or has been included in the relevant pharmaceutical needs assessment in accordance with paragraph 4(a) 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)”.

3.3 Paragraph 4(a) of Schedule 1, reads as follows:

"A statement of the pharmaceutical services that the HWB has 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 (whether or not they were located in the area of the HWB), secure improvements to, or better access to, pharmaceutical services, or pharmaceutical services of a specified type, in its area

3.4 Page 53 of the Reading PNA states under the heading of “Opportunities for improvements and/or better access to pharmaceutical services”.

“Based on the information available at the time of developing this PNA, there is opportunity to improve access to essential services for residents living in Mapledurham, Thames, Whitley and Peppard wards.”

3.5 To avoid ambiguity the authors of the PNA have not stated “may be” as they have when discussing current need, but have stated “there is” - (Based on the information available at the time of developing this PNA, there may be gaps in provision of essential and advanced pharmaceutical services within walking distance for some residents in Whitley, Mapledurham and Thames wards).

3.6 Furthermore, the concluding paragraphs under the headings ‘Current gaps’, ‘Future gaps’ and Opportunities for improvements and/or better access to pharmaceutical services’ are an attempt by the HWB to separate identified improvement or better access gaps from current or future need gaps NHS England are correct in stating that after identifying the gap for residents in the Peppard ward the authors of the PNA have mentioned that these residents are able to access pharmaceutical services within a 20- minute drive time, which meets one of the key NHS standards for accessibility.

3.7 However, the PNA has not gone beyond this and concluded that because pharmaceutical services are accessible within a 20 minutes drive time there is no need for improvement or better access.

3.8 The only way for improvements or better access to services to be secured for residents is through the grant of a new pharmacy application or relocation of an existing pharmacy to parts of Peppard ward where the gap has been identified.

3.9 As far as the Applicant is aware no existing contractor has applied to relocate to the parts of Peppard where residents cannot access pharmaceutical services within a 15 minutes walk.

3.10 It is clear from this statement that the approval of this application will make a significant difference to patients requiring access to pharmaceutical services from the Peppard ward.

3.11 Primary Care Appeals should therefore be satisfied that the paragraphs should be considered to refer to improvements or better access for the purposes of Regulation 17(1).

3.12 Primary Care Appeals should also consider the matters set out in Regulation 17(2) [quoted in full (a), (b), (c)]

3.13 The Applicant is not aware of another application offering to secure the improvements or better access mentioned in paragraph (1) that we are offering to secure.

3.14 Regulation 17(2)(d) [quoted in full]

3.15 There is no evidence to satisfy that there have been changes to the profile of pharmaceutical services in the area of the relevant HWB that are such that refusing the application is essential in order to prevent significant detriment to the provision of pharmaceutical services in that area. 9

3.16 In our opinion this should not satisfy for the purposes of Regulation 17(2)(d) that refusing the application is essential in order to prevent significant detriment to the provision of pharmaceutical services in the area of the HWB.

3.17 Regulation 17(2)(e) [quoted in full]

3.18 When considering whether granting the application would secure the improvements or better access in full or in part it is important first to consider if the proposed estimated address falls within the Peppard ward.

3.19 The Shopping Precinct, Farnham Drive, Caversham Village Park, Reading, RG4 6NY falls fully within the Peppard Ward, as outlined approximately below in green However, it is also important to note the HWB have specifically mentioned ‘a small area of Peppard’ when discussing access. This therefore conclude that authors of the PNA do not consider that all the residents of the Peppard ward to have difficulties in accessing pharmaceutical services during normal working hours.

3.20 To conclude which area of Peppard have difficulties in accessing pharmaceutical services it is important to consider in what context accessibility has been considered by the HWB. When the HWB discusses access for residents in Peppard ward during normal working hours it is discussed in terms of walking distance. More specifically residents living in a small area of Peppard that are not within 15 minute walk of a pharmacy.

3.21 This is further highlighted by Map 7 which shows the area where residents can access a pharmacy within a 15 minute walking in green. The proposal site is outlined in red on the map (at Appendix A) and does not fall within the green area. It can therefore be concluded that the proposed estimated address falls within the part of Peppard where residents are not within a 15 minute walk of a pharmacy.

3.22 Map 7: Residents of Reading who can access a pharmacy within a 15 minute walk The Applicant is proposing core hours between 9.00am and 5.30pm Monday to Friday with supplementary hours from 9.00am to 12.30pm on Saturdays.

3.23 Therefore, the application would secure the improvements or better access in relation in full by offering guaranteed pharmaceutical services during normal hours in the area of Peppard where residents cannot access a pharmacy within a 15-minute walk of a pharmacy.

3.24 Regulation 17(2)(f) [quoted in full]

3.25 The Applicant is not aware of any pharmacy opening or relocating within the area of the Peppard ward that cannot access a pharmacy within a 15-minute walk.

3.26 Therefore, for the purpose of Regulation 17(2)(f), the applicant is not satisfied that, since the publication of the relevant pharmaceutical needs assessment, the improvements or better access mentioned in paragraph (1) have or has been secured by another person who is providing, or is due to be secured by another person who has undertaken to provide, either in the area of the relevant HWB or in the area of another HWB.

3.27 Regulation 17(2)(g) [quoted in full]

3.28 The intent behind Regulation 17(2)(g)(i) is if the PNA specifically referred to a service other than essential services (i.e. advanced or enhanced services).

3.29 The PNA clearly states “Based on the information available at the time of developing this PNA, there is opportunity to improve access to essential services for residents living in Mapledurham, Thames, Whitley and Peppard wards. The improvements or better access therefore relates to essential services.”

3.30 In terms of an undesirable increase in the availability of essential services no evidence has been provided that granting this application would lead to an undesirable increase in essential services in the area of the HWB, or that there have been any changes that would mean this application would cause significant detriment to the provision of pharmaceutical services.

3.31 Regulation 17(2)(h) [quoted in full]

3.32 There is no information provided to indicate that the application should be deferred or refused by virtue of any provision of Parts 5 to 7 of the Regulations.

Regulation 22

3.33 With regards to Regulation 22. NHS England considered that Regulation 22(2)(a) indicates that the relevant PNA to be considered is the PNA of the relevant HWB that is current at the time the decision to grant or refuse the application is made. NHS England also noted that Regulation 22(2)(a) enabled an earlier PNA to be considered but only if, in the opinion of the decision maker, the only way to determine the application justly is with regard to the earlier PNA.

3.34 NHS England were correct to determine the application with regards to the current PNA.

3.35 Whilst the application was submitted prior to the publication of the current PNA, the application was put on hold whilst rurality of this area was reviewed; the rurality of this area was re-determined on 2nd May 2018 as non-controlled. Considering the application was only circulated to interested parties following the publication of the current PNA. It would therefore be just to determine this application with regards to the current PNA.

3.36 The Applicant therefore respectfully requests Primary Care Appeals to grant this application as it secures the identified improvements or better access in the PNA in full.

4 Summary of Representations

This is a summary of representations received on the appeal.

4.1 BOOTS UK LTD

4.1.1 Thank you for your letter dated 71h January 2019 informing us of the above appeal.

4.1.2 We agree with the decision made by NHS England. We stand by our comments submitted to NHS England. I have enclosed a copy of our representations for your consideration when determining this appeal.

4.1.3 We would like to draw your attention to our recent Consolidation application between ourselves and Day Lewis PLC that you may not be aware of. Our application was approved on 1Oth December 2018 and will take effect on 1st February. Our store will continue to operate from 45 St Martins Precinct, Church Street, Caversham. RG4 8BA.

4.1.4 In their decision report, the Thames Valley Pharmaceutical Services Regulations Committee noted representations made by interested parties including Reading Health & Wellbeing Board who had assessed the potential impact of the consolidation on pharmaceutical services within its area. The HWB concluded that, having reviewed its pharmaceutical needs assessment, it did not believe that our consolidation would create a gap in pharmaceutical services that could be met by a current or future needs, or improvements or better access application. 11

4.1.5 We respectfully ask the deciding committee to reject this appeal.

In a letter to NHS England dated 12 September 2018, Boots UK Ltd stated:

4.1.6 Thank you for your letter dated 9 August 2018 informing us of the above application.

4.1.7 We would like to submit the following comments:

4.1.8 The 2018 Reading PNA executive summary key findings on page 4 states:

“Although 95% of residents are within a 15 minute walk of a pharmacy during normal working hours, residents in parts of Whitley, Mapledurham, and Thames wards and a small area of Peppard ward are not within walking distance of a pharmacy during normal working hours.”

4.1.9 However, it is important to note that all residents are within a 20 minute drive, which meets a key NHS standard for accessibility.

4.1.10 The application is predicated on the provision of services to the very few people who may not live within 15 minute walk of a pharmacy. However, we believe that the extracts from the PNA highlighted by the applicant are statements rather than identified need(s).

4.1.11 According to NHS Choices there are two pharmacies within a mile of the application site provided by Markand Pharmacy and Lloyds Pharmacy. The nearest 100 hour pharmacy is located 1.3 miles away and is provided by Tesco. Our pharmacy in Caversham is located 1.4 miles away.

4.1.12 In the conclusion on page 54 of the PNA, it goes on to state: Based on the information available at the time of developing this PNA, no NHS services have been identified which would affect the need for or impact on the need to secure improvements or better access to pharmaceutical services either now or in specified future circumstances.

4.1.13 We do not believe this application would secure identified improvements or better access and respectfully ask the deciding committee to refuse this application.

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

4.2 LLOYDS PHARMACY

4.2.1 Thank you for your letter dated 7th January 2019 advising of the appeal with regards to the above application. I would like to submit the following comments in response.

4.2.2 The applicant relies on page 52 of the Pharmaceutical Needs Assessment (PNA) to support their application.

4.2.3 The applicant has however not provided the complete wording of the conclusion. It states

Conclusion: Based on the information available at the time of developing this PNA, there may be gaps in provision of essential and advanced pharmaceutical services within walking distance for some residents in Whitley, Mapledurham and Thames wards. However, these residents are able to

access pharmaceutical services within a 20 minute drive time, which meets one of the key NHS standards for accessibility.

4.2.4 The above paragraph only considers there ‘may’ be gaps and for ‘some’ residents. It also concludes that “these residents are able to access pharmaceutical services within a 20 minute drive time, which meets one of the key NHS standards for accessibility”. There are therefore no specific improvements or better access identified in the context of Regulation 17.

4.2.5 The statement relied on by the applicant does not conform to the Regulations in that it is not a clear statement providing what is needed and where within the locality. It cannot constitute an improvement or better access.

4.2.6 It could also be considered that approving a new pharmacy in this vicinity would provide an undesirable increase in the availability of essential services. The additional hours and services provided by the existing providers at weekends could be under threat should there be an over provision of pharmaceutical services.

4.2.7 I submit Regulation 17 has not been met therefore I ask the Committee to dismiss the appeal and refuse the application.

4.3 L ROWLAND & CO (RETAIL) Ltd

4.3.1 Thank-you for the opportunity to comment on the above appeal. If the NHS Resolution decide to convene an oral hearing we are willing to attend under the provisions of Paragraph 8 of schedule 3 of the regulations.

4.3.2 In our view the need for a new pharmacy has to be specifically stated in the PNA for regulation 17 to be engaged. In this case a view is given that there is a possibility of a gap but then there is a qualification that this gap is filled by other services in the vicinity. As a consequence we do not believe that a gap has been specifically identified in the PNA and the conditions for a regulation 17 application are not present. As a result we believe that NHSE were correct in refusing this application and suggest that the same response is the only one available to NHSR

4.3.3 We respectfully request that the NHSR inform us of the outcome in due course.

4.4 ENIMED LTD (FORMERLY MANICHEM LTD)

4.4.1 Thank you for your letter of 71h January 2019 and enclosures in which you notify us of the above application to be considered under Regulations 17 and 31 of the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013, as amended.

4.4.2 We note that the decision of NHS England to refuse the application was based on the application's failure to meet the requirements of Regulation 17 in terms of securing either identified improvements or better access.

4.4.3 We do not believe sufficient evidence to support a new NHS contract at this site has been provided in the appeal correspondence that should alter the current decision on this application and, therefore, we do not support the appeal.

4.4.4 We hope that these comments are helpful and we would be grateful if you could keep us informed of the progress of this appeal.

4.5 THAMES VALLEY LPC

4.5.1 The LPC is pleased to have the opportunity to comment on this appeal.

4.5.2 The LPC fully supports the decision taken by NHS England and has nothing to add to our earlier comments on the application. I have attached these for your reference.

4.5.3 We agree that it is appropriate to judge this application and appeal against the 2018 PNA.

4.5.4 We would request that we be kept informed of any developments in the application and reserve the right to attend an appeal hearing if one is held.

In a letter to NHS England dated 20 September 2018 Thames Valley LPC stated:

4.5.5 The LPC is pleased to have the opportunity to comment on this application.

4.5.6 The LPC believes that this application is within 1.6km of a controlled locality and so should be considered accordingly. There is no evidence that this has happened.

4.5.7 Once that has been considered then the LPC has the following comments on the application itself.

4.5.8 An application to secure identified improvements or better access must be judged against the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 having particular concern to regulation 17 and 19.

4.5.9 Regulation 17 states that when the NHSCB receives a routine application it is required to determine whether granting it, or granting it in respect of some only of the services specified in it, would secure improvements, or better access— (a)to pharmaceutical services, or pharmaceutical services of a specified type, in the area of the relevant HWB; and (b)that have or has been included in the relevant pharmaceutical needs assessment. Regulation 17 also requires that NHS England satisfies itself whether it should invite other applicants to submit an application to secure improvements or better access and if so, the Regulation 19 requires it to consider whether it should consider all applications at the same time.

4.5.10 The applicant has relied on the comments in the Reading PNA but the conclusion in the PNA states “Based on the information available at the time of developing this PNA, there is opportunity to improve access to essential services for residents living in Mapledurham, Thames, Whitley and Peppard wards. However, these residents are able to access pharmaceutical services within a 20-minute drive time, which meets one of the key NHS standards for accessibility.” The LPC agrees with this and is not aware of any complaints from the residents who live in the small area of Peppard ward which is a 21- minute walk/ 5-minute drive from the nearest pharmacy.

4.5.11 The LPC would also add that there is an adequate bus service and many houses have more than one car and the local population tends to travel to Caversham or Reading centre for retail and leisure activities and would have access to several pharmacies, some with extended opening hours, in that area.

4.5.12 A previous application for a contract in the vicinity of Farnham Drive was refused by NHS England and that decision was upheld by the Appeals Unit in December 2015. The LPC does not believe there has been any change in circumstances since then and so sees no need to award a contract currently.

4.5.13 I trust the LPC views will be of interest to NHS England and we would ask to be kept informed at all stages in the process.

5 Preliminary Decision

At a meeting on 28 March 2019, the Pharmacy Appeals Committee (“Committee”) confirmed the decision of NHS England that the application be considered with regard to the 2018-2021 PNA.

NHS Resolution proceeded to invite observations on the appeal.

6 Summary of observations

6.1 THE APPLICANT

6.1.1 Thank you for [your] letter dated 28 March 2019 informing the Applicant of the decision that this application will be considered with regard to the Reading Pharmaceutical Needs Assessment 2018 and the decision to not remit the matter to NHS England. In response to the enclosed representations received the Applicant would like to submit the following final observations.

Boots

6.1.2 Boots mention the consolidation application between themselves and Day Lewis has not created a gap. However, the Applicant does not see how this is at all relevant. Both contractors reside in the adjacent Caversham ward. This application is offering to secure improvement in accessing essential services for residents living in the Peppard ward.

Lloyds

6.1.3 Lloyds mention that the Applicant has not provided the complete wording of the conclusion. However, the conclusion that has been stated is not relevant to this application. The conclusion Lloyds are referring to applies to Current gaps, therefore in the context of Regulation 13, not Regulation 17.

2. Current gaps

Pharmaceutical services not currently provided within the HWB area, which the HWB are satisfied need to be provided now.

Conclusion: Based on the information available at the time of developing in this PNA, there may be gaps in provision of essential and advanced pharmaceutical services within walking distance for some residents in Whitley, Mapledurham and Thames wards. However, these residents are able to access pharmaceutical services within a 20 minute drive time, which meets one of the key NHS standards for accessibility.

6.1.4 It is correct that the paragraph only considers there ‘may’ be gaps and for ‘some’ residents. Hence, a Regulation 13 application was not submitted.

6.1.5 The application has been submitted as a specific requirement has been identified in the context of Regulation 17. The conclusion provided in full below does not mention the words ‘may’ be gaps or for ‘some’ of the residents. The paragraph states specifically ‘there is opportunity’.[emphasis added by Applicant].

5. Opportunities for improvements and/or better access to pharmaceutical services

A statement of services which would secure improvements or better access to pharmaceutical services, or services of a specified type, if they were provided within or outside the HWB area.

Conclusion: Based on the information available at the time of developing the PNA, there is opportunity to improve access to essential services for residents living in Mapledurham, Thames, Whitley and Peppard wards. However, these residents are able to access pharmaceutical services within a 20 minute drive time, which meets one of the key NHS standards of accessibility.

As part of the essential pharmacy offer, pharmacies are required to deliver up to six public health campaigns a year to promote healthy lifestyles. These are selected by NHS England. There is scope to gain more impact from national public health campaigns by ensuring that these are delivered in a coordinated way through community pharmacies. Local campaigns could also be delivered through pharmacies. These could be agreed and coordinated locally, in line with Reading’s HWB priorities.

6.1.6 In terms of the statement that the approval of the new pharmacy in this vicinity would provide an undesirable increase in the availability of essential services. No evidence has been provided to suggest this would be the case.

6.1.7 Furthermore, no essential services are currently provided in the area where the improvement or better access has been identified. Therefore, the availability of essential services cannot be considered undesirable.

Rowlands

6.1.8 Rowlands mention that this gap could be filled by other services in the vicinity. However, the only way this would be possible is if other pharmacies in the vicinity relocated to the area in the Peppard ward where the improvement and/or better access has been identified. The Applicant is not aware of any relocation application pending to fulfil the gap identified.

6.1.9 The Applicant therefore respectfully requests Primary Care Appeals to grant this application as it secures the identified improvements or better access in the PNA in full.

7 Consideration

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

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

7.3 The Committee had before it a copy of the Reading 2018 – 2021 PNA prepared by Reading Health and Wellbeing Board, which had been provided by NHS England.

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

7.5 The Committee dealt with the appeal by way of reconsideration of the application.

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

Regulation 31

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

(1) A routine or excepted application must be refused where paragraph (2) applies

(2) This paragraph applies where -

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

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

(ii) adjacent premises; and

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

7.8 The Committee noted that the Applicant had stated, in their application form, that Regulation 31 did not apply as the Applicant “does not operate any other pharmacy in this area”. The Committee noted that NHS England had considered Regulation 31 and had concluded that the application did not need to be refused pursuant to Regulation 31. The Committee 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.

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

Regulation 17

7.10 The application (which was to be determined in accordance with the procedures in Schedule 2 to the Regulations) was submitted by the applicant based on providing improvements, or better access, identified in the pharmaceutical needs assessment (pursuant to Regulation 17).

7.11 The Committee considered whether purported improvements or better access, on which the applicant based its application, satisfied the elements of Regulation 17(1) which reads as follows:

"(1) If -

(b) the improvements or better access that would be secured have or has been included in the relevant pharmaceutical needs assessment in accordance with paragraph 4(a) 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).

7.12 Paragraph 4(a) of Schedule 1, reads as follows:

"A statement of the pharmaceutical services that the HWB has identified (if it has) as services that are not provided in the area of the HWB but which the HWB is satisfied—

7.13 The Committee noted in the application form, that the Applicant had focused on pages 4, 42, 49 and 52 of the PNA, where the improvements or better access which the Applicant seeks to address, have been identified. On appeal the Applicant had made reference to page 53 of the final published PNA which the Committee noted contained the paragraph referred to in the application as being on page 52 of the draft PNA. The Committee noted that the Applicant seeks to address improvements or better access in the Peppard ward as defined in the PNA.

7.14 The Committee noted that, in the application form, the Applicant had made reference to page 4 of the draft PNA with the relevant paragraph being at page 4 of the final PNA which states:

“Key findings

Although 95% of residents are within a 15 minute walk of a pharmacy during normal working hours, residents in parts of Whitley, Mapledurham, Thames wards and a small area of Peppard ward are not within walking distance of a pharmacy during normal working hours. However, it is important to note that all residents are within a 20 minutes drive, which meets a key NHS standard for accessibility”.

7.15 The Committee noted that this paragraph appeared under the heading in the PNA of “Key findings”. The Committee was of the view that the above paragraph set out the percentage of Reading residents that can access pharmaceutical services in certain timescales and either on foot or in a car. There is reference to residents in parts of Whitley, Mapledurham, Thames and Peppard wards not being within walking distance of a pharmacy. The Committee was not clear if this meant that walking to a pharmacy from the relevant parts of these wards would take longer than the 15 minutes timescale used earlier in the paragraph. The Committee noted the wording in the paragraph on page 50, which is considered further below, which suggests the HWB intended to mean this. Regardless of the meaning. the Committee considered that this paragraph does not contain a statement in accordance with paragraph 4(a) of Schedule 1 indicating services that are not provided in the area of the HWB but which the HWB is satisfied would, if they were provided, secure improvements to, or better access to, pharmaceutical services, or pharmaceutical services of a specified type, in in Peppard ward which the proposed pharmacy could meet.

7.16 In its application, the Applicant went on to make reference to page 42 of the draft PNA, with the relevant paragraph being found at page 43 of the final PNA, which states, under the heading “2. Access to pharmacy services within Reading”:

“95% of Reading residents are able to access a Reading-based pharmacy within a 15 minute walk and a further 1% can access a pharmacy outside of the borough within this time. Map 7 illustrates the population that can access any pharmacy, inside or outside of Reading, within a 15 minute walking time. It is important to note that this level of accessibility does reduce to 28% on weekday evenings (after 7pm) and to 31% on Sundays. This does not take into

account opening hours of pharmacies in neighbouring authorities, which Reading Borough residents would also be able to access. Residents in parts of Whitley, Mapledurham, and Thames wards and a small area of Peppard ward are not within walking distance of a pharmacy, either within or outside the borough, in normal working hours. However, all residents are within a 20 minute drive to a pharmacy, which meets a key NHS standard for accessibility”

7.17 The Committee was of the view that this was a generalised statement in relation to the percentages of Reading residents that can access pharmaceutical services in certain timescales. There is reference to residents in parts of Whitley, Mapledurham, Thames and Peppard wards not being within walking distance of a pharmacy. As per the point made above in relation to page 4, the Committee was not clear if this meant that walking to a pharmacy from the relevant parts of the wards would take longer than the 15 minutes timescale used earlier in the paragraph. As per the comment above in relation to page 4, the Committee noted the wording in the paragraph on page 50, which is considered further below, which suggests this is what the HWB intended to mean. Regardless of the meaning. the Committee considered that this paragraph does not contain a statement in accordance with paragraph 4(a) of Schedule 1 indicating services that are not provided in the area of the HWB but which the HWB is satisfied would, if they were provided, secure improvements to, or better access to, pharmaceutical services, or pharmaceutical services of a specified type, in Peppard ward, which the proposed pharmacy could meet.

7.18 The Applicant had gone on to make reference to page 49, page 50 in the final PNA, which states:

“F: Assessment of pharmaceutical service provision

7.19 The Committee considered that this paragraph looks to reiterate the paragraph on page 43 by indicating the percentage of Reading residents that can access pharmaceutical services on foot within 15 minutes. It then indicates that some residents in parts of Whitley, Mapledurham, Thames and Peppard wards would take longer than 15 minutes to access a pharmacy on foot. The Committee considered that this paragraph does not contain a statement in accordance with paragraph 4(a) of Schedule 1 indicating services that are not provided in the area of the HWB but which the HWB is satisfied would, if they were provided, secure improvements to, or better access to, pharmaceutical services, or pharmaceutical services of a specified type, in the Peppard ward which the proposed application could meet.

7.20 The Committee noted that the final paragraph referred to by the Applicant was on page 53 of the final PNA (page 52 of the draft PNA) and stated, under “G: Conclusions:

7.20.1 “5. Opportunities for improvements and/or better access to pharmaceutical services

7.20.2 Conclusion: Based on the information available at the time of developing this PNA, there is opportunity to improve access to essential services for residents living in Mapledurham, Thames, Whitley and Peppard wards. However, these residents are able to access pharmaceutical services within a 20 minute drive time, which meets one of the key NHS standards for accessibility.”

7.21 The Committee noted the comments from parties that the Applicant had not quoted the conclusion in full and further noted that, in subsequent representations the Applicant had gone on to quote the second paragraph of the conclusion which states:

“As part of the essential pharmacy offer, pharmacies are required to deliver up to six public health campaigns a year to promote healthy lifestyles. These are selected by NHS England. There is scope to gain more impact from national public health campaigns by ensuring that these are delivered in a coordinated way through community pharmacies. Local campaigns could also be delivered through pharmacies. These could be agreed and coordinated locally, in line with Reading’s HWB priorities.”

7.22 The Committee noted the heading that these paragraphs fell under “Opportunities for improvements and/or better access to pharmaceutical services” The Committee noted that the Applicant in its appeal letter relies on this particular paragraph in its assertion that the PNA does contain a statement pursuant to paragraph 4(a) of Schedule 1.

7.23 The Committee considered the wording in detail. It noted the title under which this paragraph is located and considered that if the PNA was to include a statement pursuant to paragraph 4(a) of Schedule 1, it would likely be under this title.

7.24 The Committee noted the wording “there is opportunity to improve access to essential services for residents living in Mapledurham, Thames, Whitley and Peppard wards”. It considered that this wording appeared to suggest that access could be improved but this appeared to be qualified by the following sentence as indicated by use of “However” at the start of that sentence. The following sentence indicates that services can be accessed within 20 minutes driving time. It appears that the HWB considers that this meets a “key NHS standard” for accessibility. Although it is not clearly expressed, the implication appears to be that the HWB considers that if the “key NHS standard” for accessibility is met, then accessibility is considered to be sufficient. The Committee was therefore not clear whether or not the former sentence could be reasonably considered to be a statement pursuant to paragraph 4(a) of Schedule 1.

7.25 The Committee noted Boots reference to the consolidation application and the wording on page 54 of the PNA. The Committee agreed with the Applicant’s comments on the consolidation application and considered that Boots had not clearly set out how this was relevant to this determination. In relation to the wording on page 54 of the PNA, the Committee noted that this was pursuant to paragraph 5 of Schedule 1 and related to NHS services other than pharmaceutical services. The Committee therefore considered that it was not wording that could be relied to indicate that the PNA did not include a statement pursuant to paragraph 4(a) of Schedule 1.

7.26 Given the Committee’s uncertainty as to the wording on page 53, the Committee considered it in relation to other wording in the PNA. It noted that the “key findings” section on page 4, which appeared to be intended to summarise the findings of the PNA, does not repeat the wording on page 53 and instead indicates that there may be gaps in the provision of pharmaceutical services within walking distance for some residents in Whitley, Mapledurham and Thames wards. There is no reference to any gaps in relation to Peppard ward, whether actual or potential. The only reference to Peppard is a factual finding that small areas of Peppard ward are outside of a 15 minute walk to a pharmacy. The Committee considered that if the intent of the HWB was to include a statement pursuant to paragraph 4(a) of Schedule 1 in the PNA, the effect of which is to enable applications to open pharmacies to be submitted, then this would be clearly indicated in the key findings section as well as in the specific section on page 53.

7.27 The Committee considered that the PNA was not consistent in the language it used to express its view of the situation relating to Peppard wards. This provided difficulty to the Committee in determining that the wording on page 53 was enough to satisfy it that the PNA contained a statement pursuant to paragraph 4(a) of Schedule 1.

7.28 The Committee considered that it needed to be satisfied that the improvements or better access that would be secured by the Applicant’s application was included in the PNA. The lack of consistency and the apparent qualification of the wording on page 53

taken together led the Committee to determine that it was not satisfied that the PNA contained a statement pursuant to paragraph 4(a) of Schedule 1.

7.29 The Committee noted the information provided by the Applicant in respect of the test in Regulation 17(1). The Applicant had suggested where the application could, in their view, provide improvements or better access to the existing provision of pharmaceutical services to the Peppard ward. However, the Committee concluded that such improvements or better access were not identified in the 2018-2021 PNA in accordance with paragraph 4(a) of Schedule 1 of the Regulations and as such the provisions of Regulation 17 were not met.

Summary

7.30 The Committee was not required to refuse the application under the provisions of Regulation 31.

7.31 The Committee determined that it was not satisfied that the PNA contained a statement pursuant to paragraph 4(a) of Schedule 1 to the Regulations.

7.32 The Committee determined that the provisions of Regulation 17(1) were not met.

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

7.33.1 confirm NHS England’s decision;

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

7.33.3 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.

7.34 Given that it had reached the same conclusion as NHS England but for different reasons the Committee determined that the decision of NHS England must be quashed.

7.35 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.

7.36 The Committee noted that representations on Regulation 17 had already been made by parties to NHS England, and these had been circulated and seen by all parties who made representations on the application, 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 17.

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

8 Decision

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

8.2 The Committee determined that the application should be refused.

8.3 The Committee concluded that it was not required to refuse the application under the provisions of Regulation 31.

8.4 The Committee has redetermined that the application should be refused for the following reasons:

8.4.1 The Committee was not satisfied that the PNA included a statement pursuant to paragraph 4(a) of Schedule 1 in relation to the Peppard ward.

8.5 Accordingly, the application is refused.

Jill Jackson Case Manager Primary Care Appeals

A copy of this decision is being sent to:

Ascent Healthcare Ltd Boots UK Ltd Lloyds Pharmacy L Rowland & Co (Retail) Ltd Enimed Ltd (formerly Manichem Ltd) PCSE on behalf of NHS England, South East Area Team