27 February 2020 Arena Point Merrion Way REF: SHA/23308 Leeds LS2 8PA

APPEAL AGAINST NORTH WEST (GREATER Tel: 0203 928 2000 MANCHESTER) AREA TEAM, NHS COMMISSIONING Fax: 0207 821 0029 BOARD ("NHS ENGLAND") DECISION TO REFUSE AN Email: [email protected] APPLICATION BY DAY LEWIS PLC FOR A RELOCATION THAT DOES NOT RESULT IN A SIGNIFICANT CHANGE TO PHARMACEUTICAL SERVICES PROVISION UNDER REGULATION 24 FROM 38B GATHURST LANE, SHEVINGTON, GREATER MANCHESTER, WN6 8HW TO THE SURGERY, HOUGHTON LANE, WIGAN, SHEVINGTON, WN6 8ET

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 granted.

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

REF: SHA/23308 Arena Point Merrion Way Leeds APPEAL AGAINST NORTH WEST (GREATER LS2 8PA MANCHESTER) AREA TEAM, NHS COMMISSIONING BOARD ("NHS ENGLAND") DECISION TO REFUSE AN Tel: 0203 928 2000 APPLICATION BY DAY LEWIS PLC FOR A Fax: 0207 821 0029 RELOCATION THAT DOES NOT RESULT IN A Email: [email protected] SIGNIFICANT CHANGE TO PHARMACEUTICAL SERVICES PROVISION UNDER REGULATION 24 FROM 38B GATHURST LANE, SHEVINGTON, GREATER MANCHESTER, WN6 8HW TO THE SURGERY, HOUGHTON LANE, WIGAN, SHEVINGTON, WN6 8ET

1 The Application

By application dated 8 July 2019, Day Lewis plc (“the Applicant”) applied to NHS Commissioning Board (NHS England”) for a relocation that does not result in a significant change to pharmaceutical services provision under Regulation 24 from 38b Gathurst Lane, Shevington, Greater Manchester, WN6 8HW to The Surgery, Houghton Lane, Shevington, Wigan, WN6 8ET. In support of the application it was stated:

1.1 Day Lewis Plc - Application in respect of a relocation within a HWB area that does not result in significant change to pharmaceutical services provision – supporting information

1.2 Current location: 38b Gathurst Lane, Shevington, Greater Manchester, WN6 8HW

1.3 Proposed location: The Surgery, Houghton Lane Wigan, Shevington, WN6 8ET

Background

1.4 Day Lewis Plc own a pharmacy which trades from premises at 38b Gathurst Lane, Shevington.

1.5 The pharmacy currently occupies a poor trading position and dispenses only c. 3,500 items per month as a result. This is less than half the national average number of items.

1.6 The proposed location is occupied by an existing pharmacy which is owned by Dispensing Healthcare Limited. This is a 100-hour pharmacy and is therefore subject to high operating costs which place a significant burden on the owners in the current challenging funding environment.

1.7 If this application is approved, it is intended that the 100-hour pharmacy will close (after providing the requisite notice) and Day Lewis will relocate their pharmacy to the premises.

Preliminary Issue - Regulation 31

1.8 As NHS England will be aware, the premises to which Day Lewis Plc wishes to relocate to are currently occupied by Shevington Pharmacy which is owned by Dispensing Healthcare Ltd. The Applicant is therefore required to show why regulation 31 does not apply in this case.

1.9 Regulation 31 states as follows [quoted in full]

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1.10 In order for regulation 31 to apply, both regulation 31 2(a) and (b) above must be operative. In this case it is accepted that there is already a pharmacy trading at the proposed site and therefore 31 2(a) applies.

1.11 In order to decide whether regulation 31(2)(b) applies the decision maker should take into account decisions of Primary Care Appeals in similar cases. In addition, the relevant wording has been considered by the High Court in R (on the Application of Pharmacy Care Plus Ltd) v Family Health Services Appeal Unit [2013] EWHC 824 (Admin).

1.12 In the above court case, one company submitted an application to open a pharmacy adjacent to an existing pharmacy run by a separate company. Judge Stephen Davies accepted at paragraph 34 that:

34. It will almost always be an extremely relevant consideration to know whether or not there is any connection in terms of ownership and control between the entities who carry on the existing business and who propose to carry on the proposed new business. So, for example, if an existing business was owned by Company A and the proposed new business was owned by Company B, and there was absolutely no connection at all in terms of ownership and control between the two of them, it would be difficult to see how they could be regarded as providing the same service, even if the services which they were going to provide were complementary to each other. In contrast, if they were both to be provided by exactly the same company, then that would also be an extremely relevant consideration going the other way.

1.13 It is therefore necessary to consider whether there is any connection at all in terms of ownership and control between Day Lewis Plc and Dispensing Healthcare Ltd.

1.14 As NHSE will be aware, Day Lewis Plc operates over 300 pharmacies across England.

1.15 Dispensing Healthcare Ltd operates a single community pharmacy in Shevington and has no connection whatsoever to Day Lewis Plc.

1.16 Day Lewis and Dispensing Healthcare Ltd have reached agreement for Dispensing Healthcare Ltd to close its pharmacy and for Day Lewis Plc to relocate to the Surgery and replace it.

1.17 There are no shared directors, shareholders, employees, or control between the two organisations and therefore quoting His Honour Judge Stephen Davies, “it would be difficult to see how they could be regarded as providing the same service, even if the services which they were going to provide were complementary to each other.”

1.18 In addition, NHSE has now received a closure notice from Dispensing Healthcare Ltd in relation to their premises at the Surgery. Shevington Pharmacy will cease trading at the close of business on the day before this relocation takes effect (subject to NHSE agreement) and be replaced by Day Lewis Plc the following day. This will ensure that only one pharmacy operates from the location at any one time.

1.19 In SHA/19964 (28 February 2019) Primary Care Appeals stated in a similar case that;

5.7 The Committee also considered the judicial guidance referred to by the Applicant and set out in full at 1.7 in Annex A above (the Pharmacy Care Plus case).

5.8 The Committee had asked a number of questions of the Applicant at the hearing in order to satisfy itself as to the links (if any) between the Applicant and Everest Pharmacy. Based on the answers to those questions and the other written and oral evidence the Committee was satisfied that it was highly unlikely that both pharmacies would operate from the same premises but that in any event there was no shared ownership or control and the two pharmacies were distinct and separate legal entities.

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5.9 Taking into account all the evidence provided, the Committee was of the view that for the purposes of regulation 31 (2)(b) the services that the Applicant intended to provide from the premises on Withington Road should not be treated as part of the same services currently provided by the existing contractor there.

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

1.20 It is therefore submitted that judicial guidance, Primary Care Appeal decisions and the facts of the case mean that regulation 31 does not and cannot apply.

Local Area

1.21 The proposed location for this application is within Shevington Surgery, the only medical centre located within Shevington. The premises are located on Houghton Lane as can be seen on the map (Appendix A). The distance between the existing and proposed premises is approximately 375m.

1.22 The existing premises are located on Gathurst Lane, a short distance away from the shops that serve the local community. The pharmacy occupies what is essentially a converted garage adjacent to residential properties. The business is located at these premises as, other than a small Co-Op supermarket, these are the closest ‘retail premises’ to Shevington Surgery.

1.23 Prior to the opening of the 100 hour pharmacy, this location was the closest available for patients attending the surgery and subsequently requiring pharmaceutical services.

1.24 The ‘shopping area’ comprises a parade of shops located between Highfield Avenue to the north and Shevington Library, which can be seen on the map just to the north of the existing Day Lewis premises. “Amenities here cater very much to the local community and include a bakery, estate agent, off licence, ‘village store’, post office, takeaway outlets, the aforementioned Co-Op convenience store and another pharmacy (Manor Pharmacy)”.

1.25 The area around the surgery site is largely residential in nature although there is a hair salon and a golf course a short distance away on the main road.

1.26 The two sites are connected by the B5375 (New Miles Lane) which is also residential, with the majority of houses being bungalows indicating an older population.

1.27 The local terrain is flat, pavements are wide and in good condition and there is street lighting provided throughout the area. Whilst there is a motorway (the M6) between the sites, the bridge over the motorway is level and has wide pavements on both sides. It is therefore easy to cross as can be seen in the images (at appendix A).

1.28 The ease with which people cross this bridge is clear from the fact there is housing on both sides of the motorway and people living to the west of the M6 access the shops to the east and people living to the east access the surgery to the west. The motorway does not constitute a barrier to movement for vehicles or pedestrians.

1.29 Despite the very short distance between the two sites, the Applicant will ensure that all existing patients, local surgeries and businesses in the area are made aware of the relocation to avoid any confusion or interruption of services to the public.

1.30 Part 8 of the application form

1.31 Regulation 24(1)(a) requires NHS England to consider whether:

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“for the patient groups that are accustomed to accessing pharmaceutical services at the existing premises, the location of the new premises is not significantly less accessible”

1.32 The Applicant is required, therefore, to consider the patient groups who use the existing pharmacy and the impact of the relocation on each of them to ensure that the proposed location is not significantly less accessible.

1.33 The NHSLA has produced a guidance note for use by its committees in respect of applications made under Regulation 24. This note gives specific consideration to the matter of patient groups and accessibility. In a recent judicial review of an application made under this regulation, Mr Justice Langstaff stated that he was broadly in agreement with the approach set out in this guidance note. Furthermore he stated that patient groups should be defined in such a way that the decision maker can assess the impact of the proposed relocation on accessibility for those patient groups. For that reason patient groups should not be defined arbitrarily but according to how and why people access pharmaceutical services.

1.34 Whilst the guidance note is not prescriptive in respect of patient groups, the following are provided as illustrations of matters that may be taken into account when defining them:

1.34.1 local GP practices;

1.34.2 methods of travel (on foot, by car, or public transport);

1.34.3 types of pharmaceutical services accessed (dispensing/collection and delivery);

1.34.4 the location of the patient group's geographic starting point of the journey to the pharmacy;

1.34.5 demography;

1.34.6 care homes; and/or

1.34.7 areas of deprivation

1.35 Taking these factors into account the Applicant’s proposed patient groups are as follows:

1.35.1 Patients attending Shevington Surgery and subsequently seeking pharmaceutical services.

1.35.2 Patients attending another surgery and subsequently seeking pharmaceutical services.

1.35.3 Patients receiving a delivery service or other non face-to-face services.

1.35.4 Patients living within the vicinity of the pharmacy who use it because it is close to home.

1.35.5 Patients whose mobility is limited due to the protected characteristics they share.

1.36 For each of the patient groups the Applicant has considered the implications of the proposed relocation. These comments apply whether people from these patient groups are attending a pharmacy to receive a prescription, access another pharmaceutical service or to purchase ‘over the counter’ medicines.

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Patients attending Shevington Surgery and subsequently seeking pharmaceutical services

1.37 The main source of prescriptions for this pharmacy (contributing approximately 80% of the items dispensed) is the Shevington Surgery.

1.38 Clearly, any patients attending the new premises within the medical centre will find the location of the pharmacy more accessible given that it will occupy the same premises.

1.39 It is clear that, for this patient group, the proposed location will not be significantly less accessible.

1.40 Patients registered with this surgery but receiving repeat medication (so not necessarily attending the surgery before the pharmacy) will belong to patient group 4 below.

Patients attending another surgery and subsequently seeking pharmaceutical services.

1.41 The next nearest surgery is Standish Medical Practice, located 2.6 miles (4.2km) by road from the existing pharmacy premises. Around 7% of the prescriptions dispensed at the pharmacy originate from this practice.

1.42 Given that there are pharmacies in Standish, patients attending an appointment at the surgery requiring pharmaceutical services immediately afterwards would typically use one of the nearer pharmacies. The few who would travel from the surgery to a pharmacy in Shevington do so because they live locally and therefore belong to patient group 4. Most of the items it dispenses for these patients are repeat rather than acute medication.

1.43 In any event, given the distance from this surgery to the pharmacy at present, and taking into account the proximity of the existing and proposed sites, the journey from this surgery to the pharmacy at the proposed location would not be materially different to the existing journey. The maximum additional distance of 375m in the context of a journey of 4.2km is not significant, especially as car parking facilities are available at the surgery site.

1.44 Other medical centres are even further afield and contribute even fewer prescriptions, so the same considerations apply in respect of the effect of this relocation on patients attending these surgeries.

Patients receiving a delivery service

1.45 A proportion of the current pharmacy’s prescriptions are handled via its long-standing delivery service. This service is free of charge and includes patients whose repeat prescriptions are physically collected from their surgery and those whose prescriptions are issued via EPS. There are no patients who bring their prescription to the pharmacy then request the dispensed medication to be delivered unless, as happens occasionally, their required medication is not in stock in which case it will offer to deliver the medication.

1.46 For the avoidance of doubt these deliveries include patients whose medication is supplied in ‘trays’ as part of a DDS (domiciliary dosage system), and for any care homes served by the pharmacy.

1.47 For these people, the service will remain the same regardless of where they live. The collection/delivery service will remain unchanged and continue to be free of charge as a result of this relocation.

1.48 It is clear, therefore, that for this patient group pharmaceutical services will remain as accessible as they are currently following the relocation.

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1.49 The Applicant can also confirm that those other essential services that can be carried out through the delivery service (such as the collection of unwanted medication) will continue to be provided in the same manner after the relocation.

1.50 Patients receiving essential services that do not involve visiting the pharmacy in person (such as telephoning for public health, signposting or self-care advice) will also continue to receive these services in exactly the same way from the new premises.

Patients living within the vicinity of the pharmacy who use it because it is close to home.

1.51 As discussed earlier, both the existing and proposed areas are essentially within residential areas. There will, therefore, be some patients who find the proposed location is closer to home and others who find it is slightly further away.

1.52 However, it is the case that the majority of the housing within Shevington is to the east of the motorway, on the same side as the existing location. This can be seen from the map at Appendix A.

1.53 It is important to note, however, that the residential areas of Shevington are spread over a wide area from Parkbrook Lane in north to Princes Park in the south - a distance of around 1.2 miles (1.9km).

1.54 It is also noteworthy that the area closest to the existing site has a relatively small population compared to the large residential estate to the north east of Shevington.

1.55 Whilst it is likely that, for many of these people, the proposed location will be marginally further away, the additional journey will not be significant in the context of their overall journey. For example, a resident living on Elnup Avenue, in the middle of this large estate (and indicated on the map by a blue triangle) would have a journey of 1.3km (on foot or by road) to the existing location or 1.5km to the proposed location. It is clear that this is not a significant increase in the distance travelled in the context of their overall journey.

1.56 A resident able to travel 1.3km to a pharmacy at present is highly unlikely to find that 1.5km is too far to travel.

1.57 A similar picture would apply for patients living to the south of Shevington who already have a journey of 750m to access the pharmacy in its current location so the incremental distance for them would not be significant whatever their means of travel.

1.58 It is also relevant, of course, that the proposed location is at the site of the only medical centre in Shevington where the vast majority of local residents are registered and attend to access medical services. It is clear that, if they find the location accessible in respect of medical services, they will also find it accessible for pharmaceutical services.

1.59 When considering the implications of this relocation, the Applicant has taken account of patients who travel from their homes by motor car, public transport or on foot.

1.60 In terms of car ownership, at the time of the last census, only 12.5% of residents of the ward in which the existing premises are located (Shevington with Lower Ground) had no car in the household compared to the national average of 25.8%. Car ownership is significantly higher than average.

1.61 For those who travel by the car they will not find the proposed premises any less accessible than the current ones. The two premises are approximately 375m apart and parking is available at both locations. The additional journey by car takes less than a minute.

1.62 For those travelling by public transport, the nearest bus stop to the existing site is 100m away on New Miles Road. The nearest stop to the proposed site is also on New Miles 6

Road and is 100m away from the surgery. Both stops are served by the same bus routes. It is clear, therefore, that accessibility is identical for bus users.

1.63 For those travelling on foot, the maximum additional distance they would have to walk to access the proposed site is 375m, along level ground with wide pavements. This journey takes less than 5 minutes at a comfortable walking pace. Patients whose journey took them close to the existing site would have only one additional road to cross, this being Gathurst Lane and there is a light-controlled pedestrian crossing next to the Co-Op store. This distance is not such that it would render the proposed location significantly less accessible.

1.64 Overall, therefore, it is clear that accessibility for patients who use our pharmacy because it is close to their home will be unchanged as a result of this relocation regardless of their means of transport.

Patients whose mobility is limited due to the protected characteristics they share

1.65 Every person shares at least one protected characteristic, i.e. they belong to a group that distinguishes them by age, race or any other characteristic. More commonly, however, this relates to those who may be elderly, infirm or disabled.

1.66 For many who currently access the existing pharmacy ‘on foot’ or by wheelchair either from their homes or elsewhere, the journey to the new premises will not be significantly longer due to the close proximity of the existing premises to the proposed one. For those who will have slightly further to travel, the additional journey of approximately 375m, along level ground without any barriers to cross will not present difficulties.

1.67 Those using other forms of transport will find that the new premises are at least as accessible if not more so for the reasons described previously.

1.68 Regulation 24(1)(b) requires NHS England to consider whether:

“in the opinion of the NHSCB, granting the application would not result in a significant change to the arrangements that are in place for the provision of local pharmaceutical services or of pharmaceutical services other than those provided by a person on a dispensing doctor list— (i) in any part of the area of HWB1, or (ii) in a controlled locality in the area of a neighbouring HWB, where that controlled locality is within 1.6 kilometres of the premises to which the applicant is seeking to relocate;”

1.69 In the Applicant’s opinion it is clear that granting this application will not result in a significant change to the arrangements currently in place. The proposed relocation is such a short distance that it is unlikely to have a material effect on the provision of pharmaceutical services by other contractors on the area.

1.70 The existing and proposed premises are within a very short distance of each other and the existing services and opening hours will be maintained.

1.71 As the distance between the sites is short there is no reason to believe that dispensing patterns in the area will be affected in any significant way as a result of this relocation.

1.72 Patients groups accessing pharmaceutical services in the area will still be able to access them in the same way so there is no reason to suggest that this relocation it will result in a significant change to the arrangements in place.

1.73 It is important to note that the proposed closure of the 100-hour pharmacy is not a matter NHS England is required to have regard to when considering this application. The owners of that pharmacy intend to provide a notice to close rather than an application to close. It is not a matter which NHS England is required to make a decision on.

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1.74 This relocation application is not directly conditional on that close [sic] and should be considered as being unconnected to the plans of Dispensing Healthcare Limited. This matter is discussed further on the application form in relation to Regulation 31.

1.75 Regulation 24(1)(c) requires NHS England to consider whether:

“the NHSCB is satisfied that granting the application would not cause significant detriment to proper planning in respect of the provision of pharmaceutical services in the area of HWB”.

1.76 The Applicant has been unable to find any plans relating to future pharmaceutical services in the area, whether belonging to the local authority, NHS England or any other commissioner of pharmaceutical services, that would be affected in any way by granting this application.

Conclusion

1.77 In conclusion, it is clear that the proximity of the existing and proposed sites is such that, regardless of how patient groups are defined and regardless of how these patients access the existing pharmacy, the new premises will not be significantly less accessible

1.78 In that case, the Applicant invites NHS England to approve this application.

2 The Decision

NHS England considered and decided to refuse the application. The decision letter dated 21 November 2019 states:

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

Excerpt from the PSRC decision report of 23 October 2019

Considerations

2.2 Regulation 31

2.3 Are the applicant’s proposed premises adjacent to, or in close proximity to, another pharmacy or dispensing appliance Contractor premises?

2.4 The PSRC noted that the proposed premises are currently occupied by a 100 hour pharmacy (Dispensing Healthcare Ltd t/a Shevington Pharmacy), and NHS England has not yet received notice of permanent closure from this contractor. The PSRC noted that the applicant states that the incumbent contractor (Dispensing Healthcare Ltd) will serve notice to close in due course if the no significant change relocation application is granted.

2.5 Regulation 31 requires NHS England to be satisfied that the proposed premises will not be on the same site, or adjacent to a site, providing services which could be considered to be the same as the applicant currently provides. As the applicant (Day Lewis plc) is an entirely different business entity to Dispensing Healthcare Ltd, the PSRC considered it would be difficult to consider the services currently being provided from the site as the same as the applicant provides. Based on all available information, the PSRC was satisfied that there are no business links between Day Lewis plc and Dispensing Healthcare Ltd; and therefore, concluded that a refusal under Regulation 31 would not be appropriate in this case.

2.6 Regulation 24 – does the need on which the applicant based its application satisfy the elements of Regulation 24?

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Consideration 1 - Is the location of the new premises significantly less accessible than the current premises, and if so why? Regulation 24(1)(a)

2.7 The applicant provided a 12 page document of supporting information along with its application.

2.8 The applicant identified its five main patient groups as:

2.8.1 Patients attending Shevington Surgery and subsequently seeking pharmaceutical services

2.8.2 Patients attending another surgery and subsequently seeking pharmaceutical services

2.8.3 Patients receiving a delivery service or other non-face-to-face services

2.8.4 Patients living within the vicinity of the pharmacy who use it because it is close to home

2.8.5 Patients whose mobility is limited due to the protected characteristics they share

2.9 The applicant advised that 80% of its prescription activity originates from Shevington Surgery, and as the pharmacy is intending to relocate into the same building as Shevington Surgery, those patients would find the new location more accessible.

2.10 The applicant considered that patients attending the next nearest GP practice – which is 2.6 miles/4.2km away – account for only 7% of their prescription activity, as patients of this GP practice are more likely to seek pharmaceutical services close to the GP practice. The applicant believes that those seeking services from its current site live locally, and therefore would not be affected by the relocation.

2.11 The applicant had addressed Regulation 31, concluding that due to there being no business links between the incumbent contractor at the proposed site (Dispensing Healthcare Ltd) and the applicant (Day Lewis plc) the application should not be refused under this regulation. It also inferred that the intention of the 100 hour contractor (Dispensing Healthcare Ltd) to close the pharmacy currently situated at the proposed location was not a matter for NHS England to consider directly in connection with this relocation application. However, the PSRC is obliged to consider the existing pharmacy provision which shares the same location in order to establish or discount any business links between the two providers.

2.12 The PSRC took into consideration the distance between the current and proposed locations, which is approximately 0.2 miles/0.32 km, travelling along New Mills Lane across the bridge over the M6 motorway. This is approximately a 5 minute walk (source: Google Maps) with no obvious barriers between the sites.

2.13 Based on the information provided by the applicant in terms of the patient groups identified in its application and supporting document, the PSRC concluded that the proposed location was not significantly less accessible to those patient groups currently accessing pharmaceutical services from the current location, for the reasons stated above.

2.14 The PSRC was therefore of the view that condition (a) had been met.

Consideration 2 - In the opinion of the NHSCB, would granting the application result in a significant change to the arrangements that are in place for the provision of local pharmaceutical services or of pharmaceutical services other than those provided by a person on a dispensing doctor list—

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(i) in any part of the area of HWB1, or

(ii) in a controlled locality of a neighbouring HWB, where that controlled locality is within 1.6 kilometres of the premises to which the applicant is seeking to relocate? Regulation 24(1)(b)

2.15 and

Consideration 3 – Is the NHSCB of the opinion that granting the application would cause significant detriment to proper planning in respect of the provision of pharmaceutical services in the area of HWB1? Regulation 24(1)(c)

2.16 In addition to the 100 hour pharmacy currently located at The Surgery, Houghton Lane (Dispensing Healthcare Ltd) and the applicant, the PSRC noted there is just one further pharmacy within 0.5 miles of both sites. This is Manor Pharmacy, 4 Gathurst Lane, Shevington, Wigan WN6 8HA; a 40 hour pharmacy offering a total of 43 hours Monday to Friday (closed on Saturday/Sunday).

2.17 When considering the application, the PSRC had regard to the services currently being provided by Wigan GP Alliance from the proposed site (The Surgery, Houghton Lane), which is one of a number of hubs across Wigan offering GP appointments out of hours, specifically between 18:30 and 22:00 on weekdays and 08:00 and 20:00 on weekends and Bank Holidays. Currently The Surgery, Houghton Lane is served by a 100 hour pharmacy on site (Dispensing Healthcare Ltd) which has opening hours enabling patients to access pharmaceutical services during the times that extended hours GP services are being delivered from this particular site.

2.18 It was noted that the next nearest pharmacy offering extended opening hours over seven days per week is Boots UK Ltd t/a Boots the Chemist, Robin Park, 37 Loire Drive, Wigan WN5 0UH, which is a 40 hour contractor offering 30 supplementary hours (total 70 hours); and is a considerable distance away at 2.8 miles/4.5km from the proposed site (Source: The NHS Site).

2.19 The PSRC observed that as a no significant change relocation, the applicant is required to maintain the same services (including opening hours) as it currently operates. The applicant’s pharmacy operates significantly fewer opening hours than the incumbent 100 hour contractor, and such reduced access to pharmaceutical services provision at the proposed site do not support the GP out of hours/extended hours provision delivered by Wigan GP Alliance from various sites across the Wigan locality including The Surgery on Houghton Lane.

2.20 The PSRC also noted (for information, not consideration) that should Dispensing Healthcare Ltd choose to give notice to close its 100 hour pharmacy at the proposed site, Wigan HWB will then take a view on whether the loss of a 100 hour pharmacy from this locality creates a gap in pharmaceutical service provision and will publish its findings as part of its Pharmaceutical Needs Assessment (PNA).

2.21 Based on all available information, the PSRC was therefore of the view that conditions (b) and (c) had not fully been met.

Consideration 4 – Are the services the applicant undertakes to provide at the new premises the same as the services the applicant has been providing at the existing premises (whether or not, in the case of enhanced services, the NHSCB chooses to commission them)? Regulation 24(1)(d)

2.22 The PSRC was satisfied that the applicant intended to undertake the same services (including opening hours) from the proposed site as it provides at its current site.

2.23 The PSRC was therefore of the view that condition (d) had been met.

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Consideration 5 – Will the provision of pharmaceutical services be interrupted (except for such period as the NHSCB may for good cause allow)? Regulation 24(1)(e)

2.24 The applicant had specified that there would be no interruption in services.

2.25 The PSRC was therefore of the view that condition (e) had been met.

Consideration 6 - If the application was originally granted for an approved retail area exemption is the applicant planning to leave the retail area? Regulation 24(3)(a)

2.26 The PSRC was satisfied that the application had not been originally granted for an approved retail area exemption. Therefore a refusal under Regulation 24(3)(a) does not apply in this case.

Consideration 7 – Is the applicant seeking to relocate to premises that are the same, or adjacent to, premises which could be considered to be part of the same service as the existing services, and so should be treated as the same site? Regulation 31

2.27 The PSRC noted that the proposed premises are currently occupied by a 100 hour pharmacy (Dispensing Healthcare Ltd t/a Shevington Pharmacy), and NHS England has not yet received a notice of permanent closure from this contractor. The PSRC noted that the applicant states that the incumbent contractor (Dispensing Healthcare Ltd) will serve notice to close in due course if the no significant change relocation application is granted.

2.28 Regulation 31 requires NHS England to be satisfied that the proposed premises will not be on the same site, or adjacent to a site, providing services which could be considered to be the same as the applicant currently provides. As the applicant (Day Lewis plc) is an entirely different business entity to Dispensing Healthcare Ltd, the PSRC considered it would be difficult to consider the services currently being provided from the site as the same as the applicant provides. Based on all available information, the PSRC was satisfied that there are no business links between Day Lewis plc and Dispensing Healthcare Ltd; and therefore, concluded that a refusal under Regulation 31 would not be appropriate in this case.

2.29 The PSRC was therefore of the view that Regulation 31 did not apply in this case.

2.30 Interested parties notified of the application

2.30.1 Greater Manchester Local Pharmaceutical Committee (LPC)

2.30.2 Wigan Local Medical Committee (LMC)

2.30.3 Wigan Health and Wellbeing Board (HWB)

2.30.4 Healthwatch Wigan

2.30.5 Wigan Clinical Commissioning Group (CCG)

2.31 All pharmacies within 2km of the current/proposed sites:

2.31.1 Shevington Pharmacy, The Surgery, Houghton Lane, Shevington, Wigan WN6 8ET

2.31.2 Manor Pharmacy, 4 Gathurst Lane, Shevington, Wigan WN6 8HA

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2.31.3 Day Lewis Pharmacy (the applicant), 38b Gathurst Lane, Shevington, Wigan WN6 8HW

2.31.4 Appley Bridge Pharmacy, 53 Woodnook Road, Appley Bridge, Wigan WN6 9JR

2.32 As the application is within 2km of Greater Manchester’s border with Lancashire, the following were also identified as interested parties:

2.32.1 Community Pharmacy Lancashire LPC

2.32.2 Central Lancashire LMC

2.32.3 Lancashire HWB

2.32.4 Healthwatch Lancashire

2.32.5 West Lancashire CCG

2.33 Interested Party representations

2.34 Interested party representations were received from Greater Manchester LPC, Wigan CCG and Lancashire LPC and are summarised as follows:

2.35 Greater Manchester LPC – objects to the application on the basis that it believed Regulation 31 applies to this application, and also that reducing the hours at the site from the current 100 hours per week to the proposed 42 hours per week would have a significant detrimental effect on the availability of pharmaceutical services to patients.

2.36 Wigan CCG - objects as the application states that if the relocation is granted, the 100 hour pharmacy will close at that site. This would result in a change in access to pharmaceutical services as it’s the only 100 hour pharmacy within the Primary Care Network (PCN) and would therefore significantly impact access to pharmaceutical services outside “normal” working hours. The closure of the 100 hour pharmacy would also lead to a loss of the commissioned palliative care service, as the applicant cannot provide this service due to their opening hours; the CCG therefore believes that granting this application would result in a change to service provision as set out in the HWB’s PNA. CCG advises that as The Surgery, Houghton Lane offers extended hours appointments, the applicant would not be meeting the needs of patients.

2.37 Lancashire LPC – advises that it notes the potential shortfall in opening hours and that this could lead to a gap in pharmaceutical services that an additional provider could exploit. Asks that a PNA supplementary note is issued to prevent the location being vulnerable to a new application.

2.38 The applicant responded to interested party comments, stating that it disagreed with the concerns raised.

2.39 The PSRC noted the representations from interested parties and was mindful that it is for Wigan HWB to assess the impact that the closure of the 100 hour pharmacy and relocation of the applicant’s pharmacy would have on pharmaceutical services provision in its area, and it is therefore for the HWB to determine whether or not the proposed changes lead to a gap in provision which could be filled by an application of the appropriate type being made.

Decision

2.40 Taking into account all available information, the PSRC decided to refuse Day Lewis plc’s application for a “no significant change” relocation.

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2.41 The PSRC determined that while the requirements of Regulation 24(1)(a), (d), and (e) had been met; the requirements Regulation 24(1)(b) and 24(1)(c) had not been met.

2.42 Regulation 24(3)(a) does not apply in this case.

2.43 A refusal under Regulation 31 would not be appropriate in this case.

2.44 The PSRC awarded appeal rights to Day Lewis plc (the applicant).

3 The Appeal

In a letter dated 4 December 2019 addressed to NHS Resolution, Day Lewis plc appealed against NHS England’s decision. The grounds of appeal are:

3.1 Day Lewis have been notified by NHS England that the above application, made pursuant to Regulation 24 of the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 (“The Regulations”), has been refused. Day Lewis have enclosed a copy of their decision letter and report for your information. Day Lewis have also enclosed a copy of their original application and supporting information.

3.2 Day Lewis plc wish to appeal this decision.

3.3 The key ground for appeal is that NHS England incorrectly concluded that granting the application would result in a significant change to existing arrangements and significant detriment to the proper planning of pharmaceutical services when, in fact, the change or detriment they perceive may occur will result from a closure notice submitted by an unconnected party. Day Lewis seek to mitigate the effects of that closure rather than being the cause of it.

Background

3.4 Day Lewis Plc currently provides pharmaceutical services from premises at 38b Gathurst Lane, Shevington, Wigan.

3.5 An unconnected party, Dispensing Healthcare Limited, provides pharmaceutical services nearby at premises within The Surgery, Houghton Lane, Wigan. That party has served notice to NHS England that it wishes to voluntary withdraw from the pharmaceutical list.

3.6 Day Lewis seek to relocate the pharmacy to the premises currently occupied by Dispensing Healthcare Limited after that pharmacy has closed.

NHS England Decision Report

3.7 In its decision report, NHS England sets out its findings in respect of each of the matters it is required to consider when determining an application made under Regulation 24. Notwithstanding that NHS Resolution will consider this matter afresh Day Lewis comment on its findings in that report as follows:

Regulation 31

3.8 The PSRC gave careful consideration to Regulation 31 and found that it was not required to refuse the application.

3.9 Day Lewis set out, in the supporting information to the application, the reasons Regulation 31 is not applicable in this case. Specifically, in respect of 31(2)(b) – whether “it is reasonable to treat the services that the applicant proposes to provide as part of the same service as the existing services” – Day Lewis explained that there is no connection whatsoever between Day Lewis plc and Dispensing Healthcare Limited.

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3.10 Judicial guidance (the Pharmacy Care Plus case) requires the decision maker to have regard to whether “there is any connection in terms of ownership and control between the entities who carry on the existing business and who propose to carry on the proposed new business”. Where there is no connection, then the parties are not providing the ‘same service’ as each other and, therefore, Regulation 31(2)(b) is not applicable. That being the case, NHS England was not required to refuse the application in accordance with Regulation 31.

3.11 When considering this matter, NHS England noted that it had not, at the time the matter was considered, received a notice of permanent closure from Dispensing Healthcare Limited. It understands that notice has now been submitted.

3.12 Regardless of the absence of a closure notice, NHS England accepted that there was no connection between Day Lewis plc and agreed with Day Lewis that the application should not be refused under Regulation 31. Clearly, Day Lewis support this finding and invite NHS Resolution to reach the same conclusion. Indeed, had NHS England followed the Regulations correctly, they would, on the basis of the judicial guidance above, have been obliged to approve the application even without a closure notice being served by the current occupier of the premises.

3.13 In any event, Day Lewis have requested and received a copy of the closure notice and have attached it with this appeal (Appendix B). This closure notice has been accepted by NHS England.

Regulation 24(1)(a)

3.14 Within the supporting evidence submitted with the application Day Lewis set out detailed information in respect of the patient groups that attend the existing premises and why they will not find the proposed premises significantly less accessible.

3.15 Whilst Day Lewis do not intend to repeat that information within this appeal letter in any detail, Day Lewis summarise it as follows:

3.15.1 Shevington is a compact village with amenities which serve the local community.

3.15.2 The village straddles the M6 motorway with residential areas and amenities located on both sides of the motorway. However, the M6 does not form a barrier to ease of movement as it is easily crossed via a bridge suitable for cars and pedestrians.

3.15.3 The local terrain is flat, paved, and benefits from street lighting. There are no barriers to movement.

3.15.4 The existing and proposed sites are less than 400m apart. Regardless of where patients start their journey and their means of travel, the proximity of the sites is such that the proposed location is not significantly less accessible for any of the patient groups identified.

3.16 In considering 24(1)(a), NHS England concluded that the distance and ease of the journey between the existing and proposed sites was such that the condition set out in Regulation 24(1)(a) had been met.

3.17 No party challenged the evidence Day Lewis provided in relation to regulation 24(1)(a) and Day Lewis submit that, in accordance with its own guidance, Primary Care Appeals should therefore proceed on the basis that this part of the legal test is proved.

Regulations 24(1)(b) & (c)

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3.18 The only material point of difference between Day Lewis and NHS England in respect of this application is with regard to the matters of whether ‘granting the application would result in a significant change to the arrangements that are in place or significant detriment to proper planning in respect of the provision of pharmaceutical services’.

3.19 It is in respect of these matters Day Lewis say the decision made by NHS England is flawed.

3.20 Day Lewis summarise the position taken by NHS England as follows:

3.20.1 There are 3 pharmacies in Shevington, one of which opens for 100 hours per week.

3.20.2 Extended hours GP appointments are offered at Shevington Surgery by Wigan GP Alliance. The existing pharmacy on site provides pharmaceutical services during these extended hours.

3.20.3 The next nearest extended hours pharmacy is located 2.8 miles away.

3.20.4 The regulations require that Day Lewis plc will be required to maintain the same opening hours after relocation as they do at their current premises. These are significantly fewer than those provided by Dispensing Healthcare Limited.

3.20.5 Wigan HWB will be required to take a view on whether the closure of the 100 hour pharmacy creates a gap in the provision of pharmaceutical services and will publish its findings in the Pharmaceutical Needs Assessment.

3.21 Day Lewis do not disagree with any of these statements. They are factually correct. However, Day Lewis do not accept that any of these matters should have led NHS England to conclude that the application should be refused.

3.22 The mistake made by NHS England is that, when considering the matters of significant change to arrangements or significant detriment to proper planning, the PSRC were referring to the closure of the 100 hour pharmacy and not the relocation of the Day Lewis pharmacy. However, the closure of the 100 hour pharmacy is an unconnected matter.

3.23 The PSRC accepted, when considering Regulation 31, that there is no connection between Day Lewis plc and Dispensing Healthcare Limited. Day Lewis plc is not a party to the notification by Dispensing Healthcare to close its pharmacy and Dispensing Healthcare is not a party to the application to relocate the Day Lewis pharmacy to alternative premises. The two matters are distinct and unconnected.

3.24 It is illogical, in Day Lewis opinion, that the decision made by an unconnected party to close its pharmacy should result in this application being refused.

3.25 Day Lewis might have more sympathy with the approach taken by NHS England if the application to relocate would result in the pharmacy moving further away from Shevington Surgery as there may be an argument that the combined effect of the closure of one pharmacy and the relocation away of another could cumulatively result in a ‘significant change to arrangements’. However, Day Lewis are proposing to relocate to premises that will be vacated by Dispensing Healthcare Limited so the result of the application will be to reinstate pharmaceutical services at that location which would otherwise be lost.

3.26 Rather than being detrimental this will have the effect of minimising the impact on patients resulting from the closure.

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3.27 Day Lewis accept that there could be an overall reduction in opening hours but, as correctly pointed out by NHS England, it will be for the Health and Wellbeing Board to determine, in due course, whether there is a gap in pharmaceutical services.

3.28 In any event, it is Day Lewis’s intention to review their opening hours after the relocation has taken effect to ensure these correctly balance the needs of patients whilst maintaining a viable pharmacy. Whilst Day Lewis are required to provide NHS England with 90 days’ notice of an increase to their supplementary hours, this period can be shortened at the discretion of NHS England.

3.29 In summary, therefore, it remains Day Lewis’s position that any perceived detriment in this area would result from the unconnected decision by Dispensing Healthcare Limited to close their pharmacy and not from the proposed relocation by Day Lewis to replace services at Shevington Surgery.

Regulations 24(1)(d) & (e)

3.30 NHS England accepted Day Lewis’s assurances that the same services would be provided and there would be no interruption. Day Lewis have no further comments to make on this matter.

Conclusion

3.31 In conclusion, whilst Day Lewis agree with NHS England’s conclusions in respect of Regulations 31 and 24(1)(a),(d) & (e), they believe their approach in respect of 24(1)(c) & (d) [sic] is flawed.

3.32 NHS England have concluded that it is the relocation of the Day Lewis pharmacy that will result in the closure of the 100 hour pharmacy when the reality is that the relocation is a response to that proposed closure to ensure the provision of pharmaceutical services at Shevington Surgery will be maintained.

3.33 That being the case it is illogical to conclude that the proposed relocation of Day Lewis will result in any change to current arrangements or detriment to planning.

3.34 Day Lewis therefore respectfully request NHS Resolution to grant this application.

3.35 Notwithstanding that Day Lewis believe a decision can be made based on the written evidence submitted in this case, they would wish to attend an oral hearing if NHS Resolution convenes one.

4 Summary of Representations

This is a summary of representations received on the appeal.

4.1 COMMUNITY PHARMACY LANCASHIRE (“THE LPC”)

4.1.1 Thank you for informing Community Pharmacy Lancashire (CPL) the name adopted by Lancashire Local Pharmaceutical Committee, of the above application.

4.1.2 CPL note that this is a routine No Significant Change application and should one be required would be willing to attend an oral hearing if it were to be deemed necessary.

4.1.3 Community Pharmacy Lancashire have had the opportunity to consider the application and although it is not their Health and Wellbeing Area CPL appreciate being given the opportunity to comment:

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4.1.3.1 CPL enclose a copy of their original response to the application.

4.1.3.2 CPL note that Day Lewis refer to a copy of the closure notice from the surgery 100 hours pharmacy.

4.1.3.3 CPL note that Day Lewis have stated if the application were to be granted they would review their opening hours. Please bear in mind Shevington Surgery operates extended hours till 19:00 on a Monday, Tuesday and Thursday evening and 8 -12:00 on a Saturday. CPL would ask that [you] discuss whether there would be a shortfall in opening hours? CPL would not want this shortfall to create a gap in pharmaceutical services that an additional provider would try to exploit.

4.1.3.4 CPL can see no significant detriment in respect of the provision of pharmaceutical services in the Health and Wellbeing Area.

4.1.4 In summary this appeal to allow relocation is desirable, CPL cannot see any reason why it would restrict access to the current patient groups but ask that you consider the pharmacy opening hours. CPL would ask that if the relocation is granted a note or supplement is added to the PNA (Pharmacy Needs Assessment) to prevent the pharmacy’s current (old) location becoming vulnerable to a new application.

In a letter dated 4 September 2019 addressed to NHS England, Community Pharmacy Lancashire stated:

4.1.5 CPL note that this is a routine No Significant Change application and should one be required would be willing to attend an oral hearing if it were to be deemed necessary.

4.1.6 Community Pharmacy Lancashire have had the opportunity to consider the application and although it is not our Health and Wellbeing Area we appreciate being given the opportunity to comment:

4.1.6.1 CPL note that Shevington Surgery operates extended hours till 19:00 on a Monday, Tuesday and Thursday evening and 8 -12:00 on a Saturday these are different to the hours that the pharmacy is offering to provide. CPL would ask that NHS England discuss whether there would be a shortfall in opening hours? CPL would not want this shortfall to create a gap in pharmaceutical services that an additional provider would try to exploit.

4.1.6.2 CPL would ask that the necessary checks are made that the 100hr Pharmacy has closed and that if the relocation is granted a note or supplement is added to the PNA (Pharmacy Needs Assessment) to prevent the pharmacy’s current (old) location becoming vulnerable to a new application.

4.1.6.3 CPL can see no significant detriment in respect of the provision of pharmaceutical services in the Health and Wellbeing Area.

4.1.7 In summary this application for relocation is desirable, CPL cannot see any reason why it would restrict access to the current patient groups but ask that [you] consider its opening hours. CPL would ask that if the relocation is granted a note or supplement is added to the PNA (Pharmacy Needs Assessment) to prevent the pharmacy’s current (old) location becoming vulnerable to a new application.

4.2 GREATER MANCHESTER LPC

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4.2.1 Greater Manchester LPC applications sub group has reviewed this application and has no further comments to add.

5 Observations on representations

5.1 DAY LEWIS PLC

5.1.1 The Applicant notes that GMLPC, the LPC within whose area the application has been made, have no new or adverse comments to make in respect of the appeal. The Applicant therefore has nothing to add to the representations made previously in response to their comments.

5.1.2 With regard to the comments from Community Pharmacy Lancashire, the Applicant notes that they do not object to the application but simply raise the matter of opening hours. As the Applicant has discussed previously, they remain committed to ensuring opening hours meet the needs of patients and will keep these under regular review once the relocation has taken place.

5.1.3 Where there is evidence of patient need, whether connected to the surgery opening hours or otherwise, the Applicant will consult with NHS England to ensure the most appropriate opening hours are maintained.

5.1.4 Finally, the Applicant wishes to point out that none of the parties consulted have identified any reason why the application does not meet the tests for a no significant change relocation and the Applicant asks the committee to be mindful of this when considering the application.

5.1.5 The Applicant has no further comments to add at this point other than to confirm should NHS Resolution determine that a further oral hearing is required to determine this application then they would wish to attend.

6 Consideration

6.1 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.

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

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 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

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(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).

6.6 The Committee considered that, as the application was not a consolidation application, it must be refused if both Regulation 31(2)(a) and 31(2)(b) apply.

6.7 The Committee considered that 31(2)(a) applies as a person on the pharmaceutical list, Dispensing Healthcare Ltd, is providing pharmaceutical services from the premises to which the application relates i.e. Shevington Surgery. The Committee notes that this is not disputed by any of the parties to the appeal.

6.8 The Committee noted in the decision letter from NHS England that they stated that they had not yet received notice of permanent closure from Dispensing Healthcare Ltd, however in the appeal letter, the Applicant indicated that Dispensing Healthcare Ltd has submitted a notification to withdraw from the pharmaceutical list.

6.9 The Committee was of the view that Regulation 31(2)(a) applies regardless of whether a notification of withdrawal from the pharmaceutical list has been submitted provided that a person listed on the pharmaceutical list is providing pharmaceutical services from the premises. Regulation 31(2)(a) does not refer to a point in time in the future but instead looks to the situation as it is when the decision maker is making their decision in respect of the application.

6.10 As at the date of this determination, there is no disagreement that Dispensing Healthcare Ltd is listed on the pharmaceutical list as providing pharmaceutical services from the premises to which the application relates, i.e. Shevington Surgery.

6.11 The Committee therefore considered that the submission of notification of withdrawal from the pharmaceutical list was not enough to displace the finding that Regulation 31(2)(a) applies to the present application.

6.12 The Committee went on to consider whether Regulation 31(2)(b) applies.

6.13 The Committee noted that the information provided with the application and in the course of this appeal indicates that there is no shared ownership or control of the two entities. The Committee considered that the information provided clearly shows that there is no commonality of ownership and control between the Applicant and Dispensing Healthcare Ltd.

6.14 The Committee is therefore satisfied that it was reasonable to consider that the pharmacies were running separate businesses, providing separate services from their respective premises and therefore Regulation 31(2)(b) did not apply.

6.15 The Committee therefore determined that it was not required to refuse the application under the provisions of Regulation 31.

6.16 The Committee had regard to Regulation 24(1) which requires the following five conditions to be met:

(a) for the patient groups that are accustomed to accessing pharmaceutical services at the existing premises, the location of the new premises is not significantly less accessible;

(b) in the opinion of the NHSCB, granting the application would not result in a significant change to the arrangements that are in place for the provision of

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local pharmaceutical services or of pharmaceutical services other than those provided by a person on a dispensing doctor list—

(i) in any part of the area of HWB1, or

(ii) in a controlled locality of a neighbouring HWB, where that controlled locality is within 1.6 kilometres of the premises to which the applicant is seeking to relocate;

(c) the NHSCB is not of the opinion that granting the application would cause significant detriment to proper planning in respect of the provision of pharmaceutical services in the area of HWB1;

(d) the services the applicant undertakes to provide at the new premises are the same as the services the applicant has been providing at the existing premises (whether or not, in the case of enhanced services, the NHSCB chooses to commission them); and

(e) the provision of pharmaceutical services will not be interrupted (except for such period as the NHSCB may for good cause allow).

6.17 The Committee considered the position in relation to each condition.

6.18 In relation to condition (a), the Committee considered the map submitted by NHS England which clearly show the locations of the existing pharmacies as well as the proposed site and medical practice within the area.

6.19 The Committee considered the information before it with regard to the patient groups who are accustomed to accessing pharmaceutical services at the existing premises. The Committee considers that it must seek to identify the patient groups who would potentially be affected by the relocation based upon the information provided by the parties. This information is most commonly going to be provided by the Applicant but others may also be able to contribute to the information on which the Committee will proceed to determination.

6.20 In this case, the Applicant has identified the patient groups as:

6.20.1 Patients attending Shevington Surgery and subsequently seeking pharmaceutical services.

6.20.2 Patients attending another surgery and subsequently seeking pharmaceutical services.

6.20.3 Patients receiving a delivery service or other non face-to-face services.

6.20.4 Patients living within the vicinity of the pharmacy who use it because it is close to home.

6.20.5 Patients whose mobility is limited due to the protected characteristics they share.

6.21 The Committee noted that these groups had not been disputed by any party either on appeal or in subsequent representations.

6.22 The Committee concludes that the patient groups who are accustomed to accessing pharmaceutical services from the existing premises are those set-out below.

Patients attending Shevington Surgery and subsequently seeking pharmaceutical services

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6.23 For the patient group that accesses pharmaceutical services following a visit to the Shevington Surgery, the Committee was satisfied that the proposed premises would not be significantly less accessible as the proposed premises would be located within the GP practice.

Patients attending another surgery and subsequently seeking pharmaceutical services

6.24 The Committee noted that the next nearest medical practice is the Standish Medical Practice which is located approximately 2.6 miles from the existing premises. The Committee noted, from the information provided that approximately 7% of the prescriptions dispensed by the pharmacy originate from this medical practice.

6.25 The Committee noted the comments from the Applicant that, given the distances involved, those using the pharmacy after visiting the Standish Medical Practice would drive to the pharmacy to access pharmaceutical services. The Committee noted the comments from the Applicant with regard to parking at the proposed site and that the additional distance of 327 metres in a journey of approximately 4.2km was not significant.

6.26 The Committee noted the comments from the Applicant that all of the other medical practices are at some distance from Shevington and that they contribute fewer prescriptions, however given the distances involved the move for those wishing to access pharmaceutical services after attending their GP surgery would not be significantly less accessible.

6.27 The Committee was of the view that for those patients who attend a surgery which was not located in Shevington and then subsequently seek pharmaceutical services, the proposed site would not be significantly less accessible.

Patients who currently use the collection and delivery service from the current site

6.28 The Committee noted the Applicant’s comments that a proportion of the prescriptions at the pharmacy are handled via its long standing delivery service. The Committee was of the view that if patients were not accustomed to accessing pharmaceutical services at the premises, then they were not subject to the test under condition (a). The Committee, however, was particularly mindful that the provision of essential services is not limited to the dispensing of prescriptions.

6.29 The Committee noted the Applicant’s comments with regard to other essential services that are carried out through the delivery service as well as those that received essential services that do not involve attending the pharmacy in person. The Committee was of the view that if these patients were not accustomed to accessing pharmaceutical services at the premises, then they were not subject to the test under condition (a).

Patients living within the vicinity of the pharmacy who use it because it is close to home

6.30 The Committee noted the comments from the Applicant, which had not been disputed, with regard to the terrain in the area. The Committee noted that although the proposed site was the other side of the M6 motorway, this was not a barrier to movement as the motorway passed under a road linking both sides of Shevington village and that this was flat with pedestrian access on both sides of the link road.

6.31 For those on foot, the Committee noted that the distance between the two sites was approximately 327 metres and that the Applicant had stated that this would not cause a problem for those that lived in the vicinity of the existing site. Further, given the nature of the area, the Applicant stated that for those who did walk to the existing site and chose to access services from the proposed site the walk would be on flat terrain with wide, well lit footpaths.

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6.32 The Committee was mindful that the move was from one side of the village to the other side and that inevitably there would be some who would have further to walk to access pharmaceutical services and some that would have less distance to travel. The Committee noted the comments from the Applicant with regard to the health of those in the village and was of the view that there was nothing provided which demonstrated that those who currently accessed the existing service on foot would not be able to continue to do so in the future if they so wished.

6.33 Based on the information before it, the Committee was of the view that for those who accessed the existing services on foot, the proposed site would not be significantly less accessible.

6.34 For those who either were not able to access services on foot or chose not to do so, the Committee went on to consider access by private and public transport.

6.35 The Committee noted the comments with regard to the high car ownership in the area and that there was parking at the proposed site. From the information given, which had not been disputed, the Committee was of the view that for those that accessed the existing site by car the proposed site would not be significantly less accessible.

6.36 For those who did not have access to private transport, the Committee noted that there was a bus service in the area. The Committee noted the undisputed comments that the same service passes both the existing and proposed sites and that the relevant bus stop for the existing site is 100 metres away and that the closest bus stop to the proposed site is also 100 metres away. The Committee was of the view that for those who did access services by bus this would involve a short walk and that the walk to the proposed site would be of a similar distance as the walk from the bus stop to the existing site using the same well lit, flat, well maintained footpaths. The Committee was of the view that for those who used public transport to access the existing pharmaceutical services, the proposed site would not be significantly less accessible.

Patients whose mobility is limited due to the protected characteristics they share

6.37 The Committee considered that this patient group will access the new premises on foot, by car or by public transport and that it was necessary to consider the accessibility of the new premises in light of each method of transport for this patient group.

6.38 The Committee was of the view that for this patient group, they would be accessing the proposed site using the same means as those who live within the vicinity of the pharmacy and use it as it is close to home. The Committee was of the view, given its findings above, that for those whose mobility is limited due to the protected characteristics they share, that the proposed site would not be significantly less accessible.

Overall assessment

6.39 In the circumstances, the Committee was satisfied that, for patient groups who are accustomed to accessing the present site, the proposed site is not significantly less accessible.

6.40 The Committee was therefore of the view that condition (a) is met.

Regulation 24(1)(b)

6.41 The Committee noted the comments from the Applicant that the determination of NHS England in respect of condition (b) had centred on the closure of the pharmacy that was currently located at the applicant’s proposed site. The Committee was mindful that, whilst there will be a reduction in hours by virtue of the pharmacy that has submitted the closure notice being a 100 hour pharmacy, this is not a relevant consideration given that the closure of a pharmacy that is not connected to the

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Applicant is not a factor that the Committee can take into account in accordance with the Regulations. The Committee was mindful that it was the move of the Applicant’s pharmacy from the existing site to the proposed site which it had to have consideration of as, irrespective of whether this application was granted or not, the pharmacy that was currently located at the proposed site could close.

6.42 The Committee noted all of the comments with regard to condition (b) and considered if the granting of this application would result in a significant change to the arrangements that are in place.

6.43 The Committee noted that the Applicant’s pharmacy was currently located in the vicinity of another pharmacy. The Applicant was proposing to move away from this pharmacy to be closer to the only medical provision within the village, which would also mean that the Applicant’s pharmacy could potentially be located in the vicinity of the third pharmacy that is currently in the village.

6.44 The Committee noted that this third pharmacy, currently located within the medical centre, had submitted a closure notice.

6.45 The Committee took into account all of the information before it and was of the opinion that, on the information provided, the granting of the application would not result in a significant change to the arrangements in place for the provision of local pharmaceutical services or of pharmaceutical services in any part of the area of HWB1 or in a controlled locality of a neighbouring HWB, where that controlled locality is within 1.6 kilometres of the premises to which the applicant is seeking to relocate. The Committee concluded that condition (b) is met

Regulation 24(1)(c)

6.46 The Committee noted the decision of NHS England in respect of condition (c) that the granting of the relocation would lead to significant detriment to proper planning in respect of the pharmaceutical services in the area.

6.47 The Committee noted that this again had been considered by NHS England in the context of the closure of the pharmacy which is currently located and the proposed site. The Committee noted that the Applicant had sought to argue that the closure of the pharmacy was not something which it had any control over as the current pharmacy at the proposed site is not operated by the Applicant and that they are two independent pharmaceutical businesses.

6.48 The Committee noted that the Applicant had stated that they had been unable to find any plans relating to future pharmaceutical services in this area that would be affected in any way by the granting of this application. No such plans had been submitted by NHS England.

6.49 The Committee noted the comments from the LPC’s with regard to the difference in hours of the Applicant’s pharmacy and the pharmacy that is/was currently located at the proposed site, however this was not something that the Committee could take into account given that the closing of the 100 hour pharmacy by a separate independent contractor is not reliant on the proposed relocation of the Applicant’s pharmacy.

6.50 The Committee further noted the comments from the LPC with regard to supplementary statements in the PNA, however this was not a relevant consideration that the Committee could take into account in accordance with the Regulations.

6.51 On the information provided the Committee was of the opinion that the granting of the application would not cause a significant detriment to the proper planning in respect of the provision of pharmaceutical services in the area of HWB1 and therefore concluded that condition (c) is met.

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Regulation 24(1)(d)

6.52 The Committee noted that the applicant had given an undertaking, in their original application form, that the same services will be provided at the proposed site. On the information provided, the Committee determined that condition (d) is met.

Regulation 24(1)(e)

6.53 In relation to condition (e), the Committee noted the applicant had confirmed in their application, and subsequent representations, that there will be no interruption to service provision. On the information provided the Committee determined that condition (e) is met.

Overall

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

6.54.1 confirm NHS England's decision;

6.54.2 quash NHS England's decision and redetermine the application;

6.54.3 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.

6.55 In circumstances above, given that the Committee has reached a different conclusion to that of NHS England, the Committee determined that the decision of NHS England must be quashed.

6.56 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.

6.57 The Committee noted that representations on Regulation 24 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 24.

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

7 Decision

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

7.2 The Committee quashes the decision of NHS England and redetermines the application.

7.3 The Committee has determined that conditions (a), (b), (c), (d) and (e) are satisfied.

7.4 The application is granted.

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Jill Jackson Case Manager Primary Care Appeals

A copy of this decision is being sent to:

Day Lewis plc Community Pharmacy Lancashire Greater Manchester LPC PCSE on behalf of NHS England – North West (Greater Manchester)

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