Decision to Refuse an Application by Asim Bhatti

REF: SHA/19876

APPEAL AGAINST NHS COMMISSIONING BOARD 1 Trevelyan Square Boar Lane ("NHS ENGLAND") DECISION TO REFUSE AN Leeds APPLICATION BY ASIM BHATTI LTD FOR INCLUSION LS1 6AE IN THE PHARMACEUTICAL LIST OFFERING UNFORESEEN BENEFITS UNDER REGULATION 18 AT Tel: 0113 86 65500 HALIFAX ROAD, A646 THE PROPERTY BETWEEN Fax: 0207 821 0029 ROOMFIELD STREET AND MAJOR STREET, Email: [email protected] TODMORDEN OL14 (BEST ESTIMATE)

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.

REF: SHA/19877

APPEAL AGAINST NHS COMMISSIONING BOARD ("NHS ENGLAND") DECISION TO REFUSE AN APPLICATION BY MS ASHA KHAN FOR INCLUSION IN THE PHARMACEUTICAL LIST OFFERING UNFORESEEN BENEFITS UNDER REGULATION 18 ON HALIFAX ROAD, A646 BETWEEN ROOMFIELD STREET AND MAJOR STREET, TODMORDEN (BEST ESTIMATE)

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/PrivacyPolicy.aspx

REF: SHA/19876

APPEAL AGAINST NHS COMMISSIONING BOARD ("NHS 1 Trevelyan Square ENGLAND") DECISION TO REFUSE AN APPLICATION BY Boar Lane Leeds ASIM BHATTI LTD FOR INCLUSION IN THE LS1 6AE PHARMACEUTICAL LIST OFFERING UNFORESEEN BENEFITS UNDER REGULATION 18 AT HALIFAX ROAD, Tel: 0113 86 65500 A646 THE PROPERTY BETWEEN ROOMFIELD STREET Fax: 0207 821 0029 AND MAJOR STREET, TODMORDEN OL14 (BEST Email: [email protected] ESTIMATE)

REF: SHA/19877

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

2 Preliminary Consideration and Site Visit

2.1 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.

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

2.3 The Committee held an oral hearing to determine the applications. This took place on 28th September, 2018 at Todmorden Town Hall. The Committee comprised of Mr A Tomlinson (chair), Mr P McGorry and Mrs C Dorking.

2.4 Asim Bhatti Limited was represented by John Devlin accompanied by Asim Bhatti and Asha Khan who attended in person was represented by Susan Hunneyball. Gillian Sealy from NHS England observed the hearing.

2.5 Before the hearing started the Committee undertook a site visit.

2.6 The site visit started at the venue for the hearing, the Town Hall in the centre of Todmorden. The town was observed to be linear in development, along the level valley floor. Most of the shops and other facilities were close to the Town Hall by an important road junction, including the market, some banks, car parks, the train and bus stations and several shops.

2.7 Many car parks were seen to be free to use and all the pavements in the centre were in good condition with dropped kerbs at junctions. During the site visit a number of mobility scooters were seen travelling throughout the town centre area.

2.8 The Committee walked east along Halifax Road as far as the bridge over the River Calder observing all the roadway designated as the “best estimate” area by the applicants. The road was seen to be fronted by shops, cafes, a theatre and other commercial buildings although as the river was approached there were more houses

and a few buildings were seen to be in poor condition and unoccupied. Beyond the bridge there were no facilities likely to attract town centre pedestrians.

2.9 The Committee noted a large and busy Lidl supermarket next to the health centre. Further east along Halifax Road on the other side of the centre another, larger Lidl supermarket was nearing completion and the Committee assumed that it would replace the current store.

2.10 A number of small new residential developments were seen behind the housing fronting Halifax Road.

2.11 The health centre was observed to be a large multi storey modern building served by its own large car park where parking is free but limited to a 90 minute stay. Although the entrance door was raised above the car park with several steps leading up to the door there are ramps to allow access by wheelchairs.

2.12 The centre is occupied by two medical practices occupying different floors and there is a spacious entrance hall with a reception area. To the left of the entrance door there is a reasonably spacious Boots pharmacy to which access is gained from the entrance hall of the centre. The pharmacy offers a wide range of traditional pharmacy products for sale. The Committee noticed 6 chairs within the pharmacy for patients waiting for service.

2.13 The Committee also noticed that the door leading from the pharmacy directly to the area in front of the centre’s entrance doors was locked but the Committee assumed that it would be unlocked at times when the health centre was closed but the pharmacy was open.

2.14 A sign on the main entrance doors to the health centre indicated that one of the medical practices was open from 8.00 am to 6.30 pm Monday to Wednesday and Friday and 7.00 am to 7.30 pm on Thursday. The Committee obtained from the pharmacy a practice leaflet giving details of the pharmacy’s opening hours which were stated to be 8.00 am to 7.30 pm Monday to Friday and 9.00 am to 13.00 pm on Saturday and Sunday.

2.15 Signs at the front of the health centre also advertised a walk in centre on the second floor of the building which was open from 8.00 am to 8.00 pm each Saturday and Sunday and bank holidays. Access to this centre was gained from a door in a corner of the pharmacy. The Committee assumed that visitors entered through the door into the pharmacy which was locked at the time of the visit.

2.16 The Committee then observed the Todmorden Pharmacy, a distance selling pharmacy on Halifax Road opposite the health centre. A prominent sign advertises the pharmacy which offered a few products on display for sale to visitors.

2.17 The Committee walked back the short distance into the town centre and noted the Boots pharmacy on Bridge Street, a traditional high street pharmacy with a ramp leading into the store and automatic doors. A sign advertised that the opening hours were 9.00 am to 5.30 pm Monday/Friday and 9.00 am to 5.00 pm on Saturday. The Committee obtained a practice leaflet for this pharmacy.

3 A summary of the above observations was provided to those in attendance. They were invited to comment upon them or indicate if any of the observations appeared to be inaccurate. Such comments as were made appear in the submissions section below.

4 Oral Hearing Submissions

4.1 The Chair indicated that there was no need to address the Committee on regulation 31. He confirmed that the two applications would be considered together and in

relation to each other. He also indicated that the Committee would be considering the 2018 Calderdale PNA for the purposes of regulation 22.

4.2 Mr J Devlin (representing Asim Bhatti Limited)

4.2.1 He gave details of the timeline for the application which was submitted in August 2016 and should have been completed in December, 2016. The other applicant had a considerable advantage in submitting her application due to the procedural issues.

4.2.2 During the course of the consideration of his client’s application an internet pharmacy had opened whereas at the point the unforeseen benefits had been identified no other contracts had been envisaged.

4.2.3 The application offered 69.5 core hours over 7 days. Boots had increased their hours but he stressed that it was only their supplemental hours, not core. It had been their application that had triggered the increase in hours, not any change in the doctors’ hours.

4.2.4 His client had identified clear gaps in opening hours, especially on Saturday and Sunday and this would give patients visiting the walk in service better access.

4.2.5 With regards to choice there were two issues to consider, the hours mentioned above and the quality of service at Boots. He referred to the letter from the MP, the letters from patients and the petition.

4.2.6 He suggested that Boots were too busy, there were long waits for service, they did not offer deliveries, the staff made errors and other pharmacies were too far away.

4.2.7 A substantial number of people had asked for more choice.

4.2.8 He gave details of how the survey had been undertaken and referred to the complaints on NHS Choices. Boots had suggested that the complaints were historical but there were comments on NHS Choices in July and September 2018.

4.2.9 He suggested that the service issues were linked to the volume of work at the health centre pharmacy. He referred to the services offered by the pharmacy and pointed out that there was no smoking cessation service or needle exchange. Neither Boots pharmacy offered a minor ailments service.

4.2.10 His client had identified the need for a pharmacy long before the other applicant. The application offered longer hours than Boots and the proposed pharmacy was targeted at patients’ needs.

4.2.11 His client had identified a suitable property, number 26 Halifax Road, Greyhounds charity shop.

4.2.12 All the evidence submitted to NHS England about concerns over service still applied.

4.2.13 His client remained concerned about the other applicant’s link with Todmorden pharmacy.

4.2.14 The letters of support had been obtained by a third party survey company using students as employees and the exercise had been conducted over several weekends. The survey had been designed by Mr Bhatti and the signatures had again been obtained by a third party research company.

4.2.15 He confirmed that no support for Boots had been received during the survey.

4.2.16 He stressed that the public were not aware of how to complain officially, preferring to use social media. He stated that there had been one complaint made to NHS England but they had deferred any action as Boots were dealing with it.

4.2.17 His client had not contributed to the PNA.

4.2.18 The Boots pharmacy within the health centre dispensed 17,000 items per month, the town centre pharmacy 5,000 items per month and the Todmorden pharmacy 4,000 items per month.

4.2.19 There were no dispensing patients at the health centre.

4.3 Mr Asim Bhatti

4.3.1 He highlighted the relevant parts of the presentation that he had prepared and which had been included with the case papers as Appendix A.

4.3.2 He confirmed that the new supermarket referred to in the written submissions was the new Lidl store.

4.3.3 He thought that the Boots pharmacies were carrying out about 50% of their allowed number of remunerated MURs.

4.3.4 He drew the Committee’s attention to the table of the number of pharmacies per 100,000 population on page 31 of Appendix A and also the table showing how Boots sold certain products at a price greatly inflated over the cost price (page 38).

4.3.5 There was a gap in the market in Todmorden for another pharmacy for the health and wellbeing of the residents and to relieve the pressure on the existing pharmacies.

4.4 Ms S Hunneyball (representing Ms Asha Khan)

4.4.1 She submitted that only her client’s application addressed needs owing to the hours and services that it offered.

4.4.2 She agreed that her client was connected to the Todmorden internet pharmacy. She worked there and was related to a director but this was not relevant to the application.

4.4.3 She referred to the table of hours within the case papers (page 84) and stressed that the recently extended hours for which Boots opened were supplemental not core hours.

4.4.4 She pointed out that the distance selling pharmacy did not offer a full pharmaceutical service but had dispensed 5,205 items in the last month for which figures were available compared with Boots (health centre) 16,886 and Boots (town centre) 4,805.

4.4.5 There were two medical practices in the health centre. There was some confusion as to the Thursday opening hours of the downstairs practice. It was not clear if it remained open until 8.00, 7.30 or 7.15 pm. The upstairs practice remained open on Wednesdays until 8.00 pm.

4.4.6 She referred to the letter from the nurse practitioner at the Community Practice (page 200).

4.4.7 Between 1.00 pm and 8.00 pm it had been recorded that 22 patients used this service, so 40 over a full day. There would be more in winter and such patients would be likely to be prescribed antibiotics or oral steroids which would be needed urgently.

4.4.8 Todmorden Pharmacy served the local care homes.

4.4.9 If there was no pharmacy open in Todmorden the nearest pharmacy would be in Halifax and she pointed out that it was a steep walk to the station and that the pharmacy in Halifax was not close to the station there.

4.4.10 She confirmed the proposed opening hours for her client’s pharmacy. She pointed out the extra half hour at weekends which distinguished it from the other application. There was no pharmacy open in Hebden Bridge at certain of these times during the weekend.

4.4.11 She referred to pages 54 and 58 of the PNA giving details of the lack of pharmacies in the area and the deprivation of the population.

4.4.12 Access was not easy throughout the area, especially during the winter as there was only one main road.

4.4.13 She referred to page 57 of the case papers for reasons why her client’s application should be preferred. Now that Boots had increased their opening hours the other application offered little advantage.

4.4.14 She referred to some of the letters of support. She pointed out that according to the 2016 health profile, 22.5% of children lived in poverty and 65.2% of adults were obese or had excess weight. She also drew attention to the fact that all residents with a blue badge could not park within 10 metres of a pharmacy (page 69 of the PNA).

4.4.15 There were many patients sharing protected characteristics and she referred to the many letters of support from patients with a variety of illnesses and conditions.

4.4.16 She submitted that it was common ground that the Boots service was flawed. She referred to the table at appendix B recording a satisfaction rating of 69% for the Boots pharmacy in the health centre which was low.

4.4.17 She referred to page 64 of the case papers giving details of the innovations that her client’s application offered in particular in the treatment of hypertension and diabetes. Her client had experience of app development from her current work.

4.4.18 The other applicant had offered no innovation.

4.4.19 The Boots letter had been received out of time and she urged the Committee to give it little weight.

4.4.20 She pointed out that there was no rule favouring the first in time when considering competing applications.

4.4.21 Her client would only employ trained staff. She would not have time to train apprentices.

4.4.22 Her client’s application offered better hours, an increase in accessibility and better services.

4.4.23 She highlighted two examples of letters of support in the case papers in which the same author had written twice. (pages 69/213 and 70/214).

4.4.24 Her client had identified three possible properties in which to open a pharmacy.

4.4.25 All letters of support had come from Todmorden residents apart from that at page 208.

4.5 Ms Asha Khan

4.5.1 She gave details of her background and confirmed that she worked at Todmorden Pharmacy. She was a manager there and had helped to set it up.

4.5.2 Todmorden was in a vulnerable valley in terms of access to services. It did not have access to the pharmacy it needed.

4.5.3 It was easy to get bogged down in paperwork but she had made the effort to get involved in community projects such as a breast cancer awareness campaign.

4.5.4 Many patients had told her that there was a need for another pharmacy in Todmorden. Between 90 and 95% of the patients using the Todmorden Pharmacy were local residents. Many patients with prescriptions were turned away as the pharmacy could not offer a face to face service.

4.5.5 She would leave Todmorden Pharmacy if she was offered a pharmacy contract.

5 Further Consideration

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

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

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

(2) This paragraph applies where -

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

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

(ii) adjacent premises; and

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

5.3 The Committee was of the view that regulation 31 could be engaged if either of the applicants opened a pharmacy adjacent to the Todmorden Pharmacy. However neither of the applicants had indicated an intention to do so and had given details of

premises in which a pharmacy could be opened that would not engage the provisions of regulation 31.

5.4 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.

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

5.6 The Committee noted that this was an application for “unforeseen benefits” and fell to be considered under the provisions of Regulation 18 which states:

"(1) If—

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

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

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

(2) Those matters are—

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

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

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

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

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

(ii) people who share a protected characteristic having access to services that meet specific needs for pharmaceutical services that, in the area of the relevant HWB, are difficult for them to access (taking into account also the NHSCB’s duties under

section 13G of the 2006 Act (duty as to reducing inequalities)), or

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

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

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

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

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

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

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

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

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

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

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

5.7.1 confirm NHS England’s decision;

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

5.7.3 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.

5.8 The Committee considered that Regulation 18(1)(a) was satisfied in that it was required to determine whether it was satisfied that granting the application, or granting it in respect of some only of the services specified in it, would secure improvements, or better access, to pharmaceutical services, or pharmaceutical services of a specified type, in the area of the relevant HWB 8

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

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

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

5.12 Although the PNA had been issued since the two applications had been submitted it was the relevant PNA for the purposes of the applications in accordance with regulation 22.

5.13 The Committee noted that the Applicants sought to provide unforeseen benefits to the patients of Todmorden.

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

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

Regulation 18(2)(a)(i)

5.16 The Committee had regard to

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

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

5.17 It appeared to the Committee that in its decisions NHS England had not considered this regulation and had not given details of any planning that could be affected by the applications. The Committee also noted that no parties had submitted that any significant detriment would be caused as a result of either application.

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

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

Regulation 18(2)(a)(ii)

5.20 The Committee had regard to

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

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

5.21 The Committee again concluded from the available evidence that NHS England had not considered this regulation in reaching its decision but noted that no party had suggested that any such significant detriment would be caused by either application nor was the Committee aware of any evidence suggesting that such detriment could occur.

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

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

Regulation 18(2)(b)

5.24 The Committee had regard to

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

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

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

5.25 The Committee had observed Todmorden to be a reasonably compact and small town with limited scope for expansion owing to its valley location. The main services had been seen to be centrally located within walking distance of one another, the parking facilities were considered by the Committee to be good and both train and bus services served the town with stations close to the centre.

5.26 It was clear from the patient list size of the town’s large and impressive health centre that the doctors there served patients from villages and communities outside Todmorden. It was assumed that such patients also visited Todmorden for the shops and other services in the town. No evidence had been presented that the population would increase or change in the near future or that apart from the construction of the new supermarket (which would replace the existing store) there were any significant building works taking place in the town.

5.27 The Committee had noted that the main roads and pavements in the town were all level and well maintained, as could be expected in the valley bottom location. Both applications had provided the same best estimate for the area in which a pharmacy would be sited and this length of Halifax Road was close to both the two Boots pharmacies in the town and included the recently opened distance selling pharmacy, Todmorden Pharmacy.

5.28 Neither Applicant had sought to persuade the Committee that the proposed pharmacy would offer patients in Todmorden significant benefits in terms of physical access. The Committee noted that it was easy for all those patients attending an appointment at the health centre to visit the pharmacy on the ground floor there and all other patients in Todmorden had a choice of visiting either of the two Boots pharmacies which were both accessible. The Committee concluded that a new pharmacy on Halifax Road would not provide patients with any significant advantage in terms of physical access.

5.29 Both Applicants had suggested that another pharmacy was needed mainly owing to gaps in the hours in which pharmaceutical services could be obtained and issues relating to the service available within the two Boots pharmacies in the town.

5.30 The application by Asim Bhatti Limited had also referred to certain procedural issues relating to the way in which that application had been dealt with by NHS England: During the extended period in which the application was pending the second application by Asha Khan had been submitted and the Todmorden distance selling pharmacy had opened. The Committee could not understand from the written evidence the reason for the extended delay which it appreciated might have prejudiced this Applicant’s application.

5.31 Although the Committee had some sympathy with Asim Bhatti Limited it felt that it could not allow its consideration of such procedural issues to affect its consideration of the applications and that the Committee’s decision should be based, in the normal way, upon the current circumstances rather than those which existed at the time the application was made.

5.32 The Committee gave careful consideration to the opening hours for the two practices within the Health Centre, the weekend Walk In Centre, the Applicants’ proposed pharmacies and the two Boots pharmacies all of which were summarised at page 84 of the case papers. It was noted that there was some debate as to the opening hours of one of the medical practices on Thursdays and it was also noted that the Boots pharmacy had recently extended their supplemental hours to include Sundays when the Walk In service was open.

5.33 The core and supplemental hours offered by Asha Khan were noted to be in excess of those offered by Asim Bhatti Limited, mainly owing to the longer opening hours on Saturday and Sunday. The Committee noted that there were gaps at present on Saturday and Sunday afternoons when neither of the two Boots pharmacies in

Todmorden were open and evidence had been given of the difficulties in accessing the nearest extended hours pharmacy in Halifax.

5.34 The Committee noted that NHS England in its decision had stated that the proposed extended opening hours “would not confer a significant benefit to patients as the applicant had not identified any patient groups that were currently having difficulty in accessing pharmaceutical services.”

5.35 The Committee accepted this conclusion. The Committee considered that during the week the opening hours of the Boots pharmacy within the health centre adequately mirrored the opening hours for the two medical practices and during the weekend, although it might be convenient for the patients attending the walk in service to have an open pharmacy close by, granting either application in order to deal with this issue would not provide patients with a significant benefit in relation to opening hours.

5.36 The Committee next considered the suggestion that patients did not have a reasonable choice of pharmaceutical services owing to the poor service at the Boots pharmacy. The Committee noted the several letters of complaint that had been submitted on behalf of Asim Bhatti Limited, the petition in support of that application, the letters from other professionals such as the nurse practitioner at the walk in centre and the satisfaction survey referred to by Asha Khan’s representative. The Committee also noted that there were no letters submitted by way of evidence approving the service at the Boots pharmacy, that the dissatisfaction appeared mainly to relate to the pharmacy within the health centre rather than the town centre pharmacy and that according to both representatives the problems arose from pressure or volume of work.

5.37 Evidence had been given on behalf of Asim Bhatti Limited as to how the results of the survey and letters of support had been obtained. The Committee did not consider that the methods employed in obtaining this evidence were particularly robust and it also noted that many of the letters in support referred to the need for extended opening hours which problem Boots had now addressed.

5.38 The Committee noted that no formal complaints had been received although it acknowledged that comments had appeared on NHS Choices and that members of the public might find it more difficult to make a formal complaint than to post a comment on social media. The Committee also noted that there had been no suggestion that there had been any breach of the relevant terms of service at either pharmacy.

5.39 The Committee also considered that some of the comments made on behalf of Asim Bhatti Limited relating to Boots such as their pricing of certain pharmaceutical products available in their stores were not relevant to the application and of no evidential weight.

5.40 Having considered all the available evidence relating to the service at the two Boots pharmacies the Committee was not satisfied that granting either of the applications for this reason alone would confer the population of Todmorden with a significant benefit in terms of giving them access to pharmaceutical services.

5.41 The Committee had not identified, nor had any evidence been presented that there were gaps in any pharmaceutical service available within Todmorden that either application would fill.

5.42 Both Applicants had indicated that they would provide all the commissioned services and also provide a number of privately funded services but there had been no evidence showing that patients did not currently have reasonable access to all the usual essential, advanced and enhanced services.

5.43 Therefore the Committee was not satisfied that, having regard to there being a reasonable choice with regard to obtaining services, granting the application would confer significant benefits by way of physical access on persons. The Committee considered that there was an adequate mix of accessible pharmaceutical services available in Todmorden such that it was not required to grant either application in order to confer significant benefits by way of physical access on persons.

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

5.45 In considering Regulation 18(2)(b)(ii) the Committee reminded itself that it was required to address itself to people who share a protected characteristic having access to services that meet specific needs for pharmaceutical services that are difficult for them to access. The Committee was also aware of its duties under the Equality Act 2010 which include considering the elimination of discrimination and advancement of equality between patients who share protected characteristics and those without such characteristics.

5.46 Evidence had been given to the Committee as to the demographic profile of the local population and in particular mention had been made of children living in poverty and the obesity of the population. The Committee were not convinced by the evidence that had been presented that the local population suffered significantly more deprivation or poor health than the national average or that they were unable to access pharmaceutical services specific for their needs.

5.47 The Committee considered in some detail the redacted letters of support submitted on behalf of Asha Khan and contained at pages 213 and 214 of the case papers. Both letters clearly refer to the difficulties experienced by patients sharing protected characteristics, namely illness, in obtaining pharmaceutical services. The difficulties in question as described related mainly to opening hours and waiting times both of which are considered by the Committee above.

5.48 The Committee noted that one of the letters states that the writer had been told that Boots did not stock Glimepiride medication and that she had to travel to Hebden Bridge or Halifax. The Committee regretted that further information was not available as to the reason for this failure to stock a medication and whether it was a temporary or regular problem.

5.49 The Committee was not satisfied in the absence of more compelling evidence, that, having regard to the desirability of people who share a protected characteristic having access to services that meet specific needs for pharmaceutical services that are difficult for them to access, granting the application would confer significant benefits on persons.

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

5.51 Evidence had been given on behalf of Asha Khan of certain services relating to hypertension and diabetes in particular but also the provision of off-site consultations and the delivery of medications that had been described as innovative. The application by Asim Bhatti Limited did not contain any evidence of innovative services to be provided.

5.52 NHS England in its decision had stated that the provision of off-site consultations and the delivery of medications were not commissioned services. The Committee were also aware that the proposed services relating to hypertension and diabetes would either be part of the Applicant’s terms of service or privately funded rather than a commissioned pharmaceutical service.

5.53 The Committee was not satisfied that, having regard to the desirability of there being innovative approaches taken with regard to the deliverability of pharmaceutical services, granting either application would confer significant benefits on persons

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

Other considerations

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

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

5.57 The Committee had regard to Regulation 18(2)(g) and found that the circumstances set out in that regulation did not apply to the current applications.

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

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

5.60 In those circumstances given that further evidence had been made available to it, that a different PNA was being considered and that the provisions of regulation 18(2)(a) were considered, the Committee determined that the decisions of NHS England must be quashed.

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

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

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

6 DECISION

6.1 The Committee quashes the decisions of NHS England and redetermines the applications.

6.2 The Committee has considered whether the granting of the applications would cause significant detriment to proper planning in respect of the provision of pharmaceutical

services in the area covered by the HWB, or the arrangements in place for the provision of pharmaceutical services in that area and is not satisfied that it would;

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

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

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

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

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

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

Committee Chair

Dated this 12th day of October 2018

A copy of this decision is being sent to:

Rushport Advisory LLP representing Asim Bhatti (applicant 19876) Charles Russell Speechlys LLP representing Asha Khan (applicant 19877) NHS England Community Pharmacy West Yorkshire Boots UK Ltd Community Pharmacy Lancashire

Annex A

REF: SHA/19876 1 Trevelyan Square Boar Lane APPEAL AGAINST NHS COMMISSIONING BOARD Leeds LS1 6AE ("NHS ENGLAND") DECISION TO REFUSE AN

APPLICATION BY ASIM BHATTI LTD FOR INCLUSION Tel: 0113 86 65500 IN THE PHARMACEUTICAL LIST OFFERING Fax: 0207 821 0029 UNFORESEEN BENEFITS UNDER REGULATION 18 AT Email: [email protected] HALIFAX ROAD, A646 THE PROPERTY BETWEEN ROOMFIELD STREET AND MAJOR STREET, TODMORDEN OL14 (BEST ESTIMATE)

1 The Application

By application dated 1 August 2016, Asim Bhatti Limited applied to NHS Commissioning Board (“NHS England”) for inclusion in the pharmaceutical list offering unforeseen benefits under Regulation 18 at Halifax Road, A646 the property between Roomfield Street and Major Street, Todmorden OL14 (Best Estimate). In support of the application it was stated:

This application should not be refused pursuant to Regulation 31 for the following reasons:

1.1 Not applicable.

Information in support of the application

1.2 The substantial population of Todmorden are currently denied reasonable access to pharmaceutical services as pharmacy services are currently available only via one contractor company. Pharmacy opening hours do not reasonably cover the hours required by local residents or to provide adequate cover for GP services locally.

1.3 The health of the local population is poor in comparison to the wider area (Census 2011) and therefore better l improved access to pharmaceutical services is required for the whole population and particularly people with a shared characteristic.

1.3.1 Age- 60 years' plus

1.3.2 People with a disability- 20.9% of the population describe living with day to day activities that are limited a little or a lot.

1.3.3 6.3% of people describe their health as bad or very bad (Census 2011)

1.4 Additionally, 26.7% of households have no access to a vehicle and due to the fact that they are only able to access 1 pharmaceutical service contract company and the nature of the area with gradients, distances, difficult routes this reinforces that reasonably choice is currently not satisfied.

1.5 By approving this application, the NHS Commissioning Board will be securing significantly better access and by doing so will also significantly improve the availability of pharmaceutical services for the significant local population.

1.6 Given the above, this application under regulation 18 should be granted.

Please explain how you intend to secure the unforeseen benefit(s), or meet identified I future need I better access

1.7 The granting of this application will significantly improve access resulting in significantly improved availability of pharmacy services both now and into the future.

1.8 The location is easily accessible by all the local population; the pharmacy will be operational for 69.5 hours weekly providing adequate cover and improved access in the locality.

1.9 Asim Bhatti Limited will provide the full range of essential, advanced and enhanced pharmacy services from premises that are professionally fitted and fit for purpose.

1.10 This will allow substantial improvement and better access both in terms of pharmacy opening hours and the range of services that the population are able to access.

1.11 Additionally, a range of other services will be provided including blood pressure testing; cholesterol testing, diabetes screening and others to support the LA achieve its health strategies.

2 The Decision

NHS England considered and decided to refuse the application. The decision letter dated 5 March 2018 states:

2.1 The Pharmaceutical Services Regulations Committee of NHS England (North – Yorkshire & Humber) has considered the above application and [is] writing to confirm that it has been refused.

2.2 The Panel considered the application, comments from interested parties and report to the committee in relation to this application.

2.3 The Panel was satisfied that Regulation 31(2)(a) does not apply as there is no other pharmacy at the same or adjacent premises to the proposed site, and Regulation 31(2)(b) does not apply as there is no suggestion that any of the nearby pharmacies are in any way connected with this application or that it would be reasonable to treat the services offered in this application as being part of the same services being offered at the same site.

2.4 The Panel considered Regulation 18(1)(a) & (b) and noted that the current Calderdale PNA stated that the provision of pharmaceutical services is sufficient in meeting the needs of the local population and does not identify any gaps in the current provision.

2.5 In considering Regulations 18(2)(a)(i) & (ii) and 18(2)(b)(i), (ii) & (iii) panel considered the unforeseen benefits proposed by Asim Bhatti Limited. The Panel noted that the proposed opening hours set out in the application would provide some additional access they agreed that they would not confer significant benefits.

2.6 The Panel also noted that Asim Bhatti Limited had not identified people with protected characteristics on whom significant benefits would be conferred and had not identified any innovative approaches that would be undertaken in the provision of pharmaceutical services.

Yorkshire and the Humber Pharmaceutical Services Regulations Committee report February 2018

2.7 This application is to be considered alongside the application by Asha Khan – CAS- 297854-P8N4B5 the application is for the same proposed premises.

APPLICATION BY ASIM BHATTI LTD.

2.8 In summary please see the timeline below for information:

2.8.1 10 August 2016 – Market Entry and Fitness to Practice application received.

2.8.2 11 August 2016 – Acknowledgment letter sent to Applicant and application sent to area team for first referral.

2.8.3 29 November 2016 – First Referral chased as no response received from the area team.

2.8.4 12 December 2016 – Response received from area team – Missing information letter sent to Applicant.

2.8.5 12 December 2016 – Applicant responded to query regarding missing information (but not sent response)

2.8.6 In the interim there was an issue with Unforeseen Benefits applications at the time which had to be resolved with local area team.

2.8.7 10 April 2017 – confirmation from the applicant received that they want to carry on with the application despite the delays

2.8.8 04 May 2017 – Complete application received and sent to the area team – application sent back to PCSE requesting Applicant provide a clearer map

2.8.9 05 May 2017 – map provided

2.8.10 12 May 2017 – asked for representations deadline 27 June 2017

2.8.11 Comments received from Boots, Lancashire LPC & CPWY

2.8.12 Comments recirculated for further 14 days which ended 24 July 2017

2.8.13 21 August 2017 – email to PCSE from new distance selling contractor with approval (approved March 2017) and due to open on 19 September 2017. This contractor had not been included on the original Interested Parties List

2.8.14 04 September 2017 – Consideration of application deferred and consultation with the missing party commenced

2.8.15 18 September 2017 – Application for same best estimate premises received

2.8.16 14 October 2017 – comments received from missing party

2.8.17 19 October 2017 – 14 day counter comments period commenced circulating comments from missing interested party

2.8.18 08 November 2017 – Letter sent to Applicant notifying them that the consideration of the application will be deferred to consider both applications together

2.8.19 13 November 2017 – Advice taken from PCC in the interest of being fair and transparent NHS England were advised to share both applications with each Applicant for comment for the 45 day period

2.8.20 31 December 2017 – Deadline for 45 day consultation

2.8.21 04 January 2018 – Advice taken from PCSE, NHS England advised to circulate all comments to the applicants and those that had originally provided representations

2.8.22 05 January 2018 – 14 day counter comment period commenced and will end on 19 January 2018

2.9 There has been some significant delay with this application, unfortunately between August 2016 and April 2017 this application had been subject to no response by the area team and ‘held back’ by PCSE due to ongoing issues with Unforeseen Benefits applications.

Regulation 31

2.10 The best estimate of the premises is Halifax Road between Roomfield Street and Major Street, Todmorden.

2.11 It was the view of Asim Bhatti Limited that Regulation 31 did not apply, because at the time of application there were only two existing community pharmacy contractors in the area. Since the receipt of the application and due to the delay in the processing of the application an application for a distance selling pharmacy has been granted (approved March 2017) and the pharmacy opened on 19 September 2017. The address of the internet pharmacy is 55a Halifax Road, Todmorden which is situated in the middle of the best estimate of the proposed premises by Asim Bhatti Limited.

2.12 Boots provided comments in respect of Regulation 31 and Appendix Two shows a map detailing the A646 Halifax Road between Roomfield Street and Major Street and the existing pharmacies in Todmorden.

2.13 Based on the above, Regulation 31 does not apply as there is no pharmacy at the same or adjacent premises to the likely sites and there is no suggestion that any of the nearby pharmacies are in any way connected with this application.

Regulation 18(1)(a) and 18(1)(b)

2.14 Calderdale PNA (2015) stated that current community pharmacy provision is sufficient in meeting the needs of the local population and that there are no gaps in current provision.

2.15 According to the comments made by CPWY the distance to, and choice of, pharmacies for residents to a bricks and mortar pharmacy has not changed and improvements to opening hours, choice or location of a new pharmacy in the area indicated by the applicant were unforeseen at the time of the writing of the PNA.

Regulation 18 (2)

2.16 This is an application for ‘Unforeseen Benefits’ the applicant states that the improvement that this application could offer significantly better access to pharmaceutical services for the residents of Todmorden.

2.17 A summary of the proposed core and supplementary hours for this application, the application by Ms Asha Khan (to be considered at the same time as this application),

the current core and supplementary hours of the Boots pharmacies and the practices can be found at Appendix Four. [not available for parties]

2.18 CPWY comments that the application only provides an additional three hours to what is currently available and felt that these would not have any significant benefit to the existing population. It must be noted that the additional hours cover the extended opening of Todmorden Health Centre and some of the hours at the Calder Community Practice. It must be noted that one of the Boots Stores did amend its opening hours to take into account some of the additional opening of the above practices.

2.19 In the letter dated 14 July 2017 Rushport Advisory on behalf of Asim Bhatti Limited comment on the ‘wide range of services’ that Boots say they provide. In that their applicant intends to provide those services currently not provided, thereby providing better access to pharmaceutical services. In the application the applicant confirms that they intend to provide all services commissioned now. A summary of the services to be provided by Asim Bhatti Limited, by Ms Asha Khan (the other Applicant) and both Boots pharmacies is provided at Appendix Five. [not available for parties]

2.20 CPWY also note that Asim Bhatti Limited has not given any evidence that there is not a reasonable choice for patients currently accessing pharmaceutical services, in addition they also comment that Asim Bhatti Limited has not provided any evidence that people with protected characteristics have difficulty currently accessing pharmaceutical service.

2.21 Asim Bhatti Limited makes no reference or evidence that they have considered innovation or offering services that will be classed as innovative.

2.22 It is recommended that this application be refused.

3 The Appeal

In a letter dated 19 March 2018 addressed to NHS Resolution, Rushport Advisory LLP representing Asim Bhatti Limited appealed against NHS England's decision. The grounds of appeal are:

3.1 Asim Bhatti Limited’s Representative writes to appeal the decision of NHS England in rejecting the above application by letter dated 5 March 2018.

3.2 NHS England consideration of the application:

3.3 This application was submitted by Asim Bhatti Limited August 2016 and should have been determined within 4 months. The application was determined March 2018 some 19 months following submission. In terms of a timeline:

3.3.1 August 2016- Application submitted

3.3.2 July 2017- NHS consultation period ends and representations are circulated

3.3.3 October 2017- NHS conduct a 2nd consultation process

3.3.4 November 2017- Deferral notice received due to competing application submitted

3.3.5 January 2018- NHS conduct 3rd consultation period.

3.3.6 March 2018- NHS England reject the application.

3.4 Asim Bhatti Limited’s Representative is concerned that NHS England has failed to consider this application in a timely and efficient manner the delays being so significant that a competing application submitted 15 months following Asim Bhatti Limited’s application was considered at the same time.

3.5 In terms of NHS England decision:

3.6 Asim Bhatti Limited’s Representative include a copy of the decision letter for completeness.

3.7 The decision letter states:

3.7.1 “The Pharmaceutical Services Regulations Committee of NHS England (North – Yorkshire & Humber) has considered the above application and [is] writing to confirm that it has been refused.”

3.8 Asim Bhatti Limited’s Representative is not convinced that North Yorkshire and Humber is the correct area team to have determined this application.

3.9 The decision letter states:

3.9.1 “The Panel considered the application, comments from interested parties and report to the committee in relation to this application.”

3.10 Asim Bhatti Limited’s Representative is concerned in terms of:

3.10.1 There has been no minutes of the meeting or ‘report to the committee’ circulated with the decision letter. a. Has the substantial and numerous replies to representations been considered by NHS England?

3.10.2 Did NHS England conduct a site visit or was determination via papers remotely in North Yorkshire and Humber area?

3.11 The decision letter states:

3.11.1 “The Panel considered Regulation 18(1)(a) & (b) and noted that the current Calderdale PNA stated that the provision of pharmaceutical services is sufficient in meeting the needs of the local population and does not identify any gaps in the current provision.”

3.12 Asim Bhatti Limited’s Representative does not contest this but as this application is submitted by way of Regulation 18 this would have to be the case as otherwise the application would have been made under an incorrect test. The statement is unhelpful.

3.13 The decision letter states:

3.13.1 “In considering Regulations 18(2)(a)(i) & (ii) and 18(2)(b)(i), (ii) & (iii) panel considered the unforeseen benefits proposed by the Applicant. The Panel noted that the proposed opening hours set out in the application would provide some additional access they agreed that they would not confer significant benefits.”

3.14 And

3.14.1 “The Panel also noted that the Applicant had not identified people with protected characteristics on whom significant benefits would be conferred and had not identified any innovative approaches that would be undertaken in the provision of pharmaceutical services.”

3.14.2 The application opening hours being 69.5 covering 7 days per week would confer a substantial increase in access and would clearly confer significant benefits.

3.14.3 The application form identifies people with protected characteristics.

3.14.4 NHS England must provide a reasoned decision which is clearly not the case in the determination of this application. Therefore, Asim Bhatti Limited’s Representative feels there is inadequate detail and information provided to allow it to submit detailed grounds for appeal as it simply does not know what NHS England has or has not considered in their deliberations.

Annex B

REF: SHA/19877

APPEAL AGAINST NHS COMMISSIONING BOARD ("NHS ENGLAND") DECISION TO 1 Trevelyan Square REFUSE AN APPLICATION BY MS ASHA KHAN Boar Lane FOR INCLUSION IN THE PHARMACEUTICAL Leeds LIST OFFERING UNFORESEEN BENEFITS LS1 6AE

UNDER REGULATION 18 ON HALIFAX ROAD, Tel: 0113 86 65500 A646 BETWEEN ROOMFIELD STREET AND Fax: 0207 821 0029 MAJOR STREET, TODMORDEN (BEST Email: [email protected] ESTIMATE)

2 The Application

By application dated 14 September 2017, Ms Asha Khan applied to NHS Commissioning Board (“NHS England”) for inclusion in the pharmaceutical list offering unforeseen benefits under Regulation 18 on Halifax Road, A646 between Roomfield Street and Major Street, Todmorden (Best Estimate). In support of the application it was stated:

This application should not be refused pursuant to Regulation 31 for the following reasons:

2.1 N/A

Information in support of the application

2.2 Ms Asha Khan believes there are unforeseen benefits for the residents of Todmorden. Currently accesses to pharmaceutical services are not adequate to fulfil the needs of the local area. There are GP surgeries in the vicinity of Ms Asha Khan’s application which open from Monday to Friday between the hours of 8am - 6.30pm and some days until 8pm.

2.3 There is also a walk-in centre open on Saturday and Sunday 8am - 8pm. Currently the hours of existing pharmacies are not meeting these needs. Therefore Ms Asha Khan intend to provide extended hours to improve access 'to meet the 'needs of patients':

2.4 Furthermore Ms Asha Khan intends to open on bank holidays as part of the core hours to improve access further.

2.5 The HWB PNA highlighted that helping disability/mobility access could be improved therefore Ms Asha Khan’s plan of the entrance and consultation room would include wheelchair access. Additionally as shown in the plan Ms Asha Khan intends to have 6

2 consultation rooms to ensure all services can be delivered promptly and efficiently whilst ensuring Ms Asha Khan has adequate staff to fulfil these services.

2.6 The PNA indicated no pharmacy currently is undertaking off-site consultation Ms Asha Khan would ensure to attend patients that would benefit from off-site consultations. For patients whom are unable to visit the pharmacy Ms Asha Khan would offer to visit them to undertake pharmaceutical services to ensure they benefit equally.

2.7 It is also noted from the PNA no pharmacy offers a service that delivers to all patients so Ms Asha Khan would offer this service to all to ensure a better service. The delivery service would operate the full opening hours Ms Asha Khan proposes.

2.8 26.7% of the adults are obese in this area and patients would benefit from a weight management service. Ms Asha Khan proposes to train staff to Healthy Living Champions to deliver a health and wellbeing hub. Ms Asha Khan would ensure staff are suitably qualified to proactively improve health outcomes. Ms Asha Khan would address conditions such as obesity, smoking, alcohol consumption, cholesterol, blood pressure, diabetes to ensure it is educating and improving health of its patients.

2.9 5.9% patients aged 17 years+ are diagnosed diabetic and additionally there is a significant level of undetected hypertension in the area. Ms Asha Khan proposes to introduce an innovative service alongside other healthcare professionals including an advanced practitioner to help improve diagnosis and treatment of such patients. The expertise of other health care professionals will be utilised to ensure we are providing the best possible care for its patients.

Please explain how you intend to secure the unforeseen benefit(s).

2.10 Ms Asha Khan intends to secure the unforeseen benefits by providing increased opening hours to match those of the surgeries. Additionally Ms Asha Khan intends to open on all Bank Holidays to serve the local community and to ease pressures from A&E and walk-in services.

2.11 Ms Asha Khan intend to provide additional services involving the expertise of an advanced practitioner to help ease some of the pressures for the local surgeries. To help deliver these services Ms Asha Khan intends to have 2 fully operating consultation rooms which are wheelchair friendly and fit for purpose.

2.12 A full time delivery service will be operate where medication can be delivered daily during the full opening hours to ensure Ms Asha Khan benefits the patients.

3 The Decision

NHS England considered and decided to refuse the application. The decision letter dated 5 March 2018 states:

3.1 The Pharmaceutical Services Regulations Committee of NHS England (North – Yorkshire & Humber) has considered the above application and is writing to confirm that it has been refused.

3.2 The Panel considered the application, comments from interested parties and report to the committee in relation to this application.

3.3 The Panel was satisfied that Regulation 31(2)(a) does not apply as there is no other pharmacy at the same or adjacent premises to the proposed site, and Regulation 31(2)(b) does not apply as there is no suggestion that any of the nearby pharmacies are in any way connected with this application or that it would be reasonable to treat the services offered in this application as being part of the same services being offered at the same site. 7

3.4 The Panel considered Regulation 18(1)(a) & (b) and noted that the current Calderdale PNA stated that the provision of pharmaceutical services is sufficient in meeting the needs of the local population and does not identify any gaps in the current provision.

3.5 In considering Regulations 18(2)(a)(i) & (ii) and 18(2)(b)(i), (ii) & (iii) panel considered the unforeseen benefits proposed by [Ms Asha Khan]. The panel noted that [Ms Asha Khan] does offer to provide opening hours that are greater than the current opening hours provided by the existing pharmacies, but the Panel agreed that these would not confer a significant benefit to patients, as [Ms Asha Khan] had not identified any patient groups that were currently having difficulty in accessing pharmaceutical services.

3.6 [See Yorkshire and the Humber Pharmaceutical Services Regulations Committee report February 2018 in Annex A above at 2.7 to 2.22].

4 The Appeal

In a letter dated 3 April 2018 addressed to NHS Resolution, Charles Russell LLP representing Ms Asha Khan appealed against NHS England's decision. The grounds of appeal are:

4.1 Charles Russell Speechlys LLP act for Ms Asha Khan. Ms Asha Khan’s representative has been instructed to appeal against the refusal of Ms Asha Khan’s application for inclusion in the Pharmaceutical List on Halifax Road between Roomfield Street and Major Street, Todmorden. Ms Asha Khan’s application is made under Regulation 18 of the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 ("the Regulations"). NHS England decided that:

4.1.1 Regulation 31(2(a) of the Regulations does not apply as there is no other pharmacy in the same or adjacent premises to the proposed site and Regulation 31(2)(b) of the Regulations does not apply as there is no suggestion that any nearby pharmacies are in any way connected with this application or that it would be reasonable to treat services offered in their application as being part of the same services being offered at the same site.

4.1.2 The Panel considered Regulation 18(1)(a) and (b) of the Regulations and noted that the current Calderdale PNA states that the provision of pharmaceutical services is sufficient in meeting the needs of the local population and does not identify gaps in the current provision.

4.1.3 In considering Regulations 18(2)(a)(i) and (ii) and 18(2)(b)(i), (ii) and (iii) of the Regulations, the Panel noted [Ms Asha Khan] offers to provide opening hours that are greater than the current opening hours provided by the existing pharmacy but the Panel stated they would not confer a significant benefit to patients as [Ms Asha Khan] had not identified any patient groups that were currently having difficulty in accessing pharmaceutical services.

4.2 Ms Asha Khan accepts the committee's finding in relation to Regulation 31 of the Regulations and agrees that the proposed premises were not the same as or adjacent to an existing pharmacy. The NHS England decision does not address specifically the issues under 18(2)(a)(i) and (ii) of the Regulations which are whether the application will cause significant detriment to the proper planning in respect of the provision of pharmaceutical services or the arrangements that NHSCB has in place for the provision of pharmaceutical services in that area. It is assumed that given this issue is within the decision maker's knowledge and no comment has been made that there is no planning or arrangements that would be affected if the application was to be granted.

4.3 At the time of writing the Calderdale 2018 PNA has not been published.

4.4 Regulation 22(2) of the National Health Service (Pharmaceutical and Local Pharmaceutical Services ) Regulations 2013 provides that “the relevant pharmaceutical needs assessment of the pharmaceutical needs assessment of the relevant HWB that is current at the time that the NHSCB takes its decision to grant or refuse the application. ….”

4.5 The relevant PNA therefore does not include the improvements or better access offered by Ms Asha Khan’s application and the application falls within regulation 18(1).

Choice

4.6 NHS England has to have regard to "the desirability of (i) there being reasonable choice with regard to obtaining pharmaceutical services in the area of the relevant HWB. …”

4.7 The closest pharmacy to the proposed site appears to be Boots at Lower George Street, Todmorden. It is understood that there are issues regarding waiting times and stock availability at this pharmacy.

4.8 There is a further Boots Chemist Pharmacy at Bridge Street, Todmorden but the hours that the pharmacy is open are limited; Monday to Friday 9.00 am to 5.30pm. Saturday 9.00am to 5.00pm, Sunday closed. There is no other pharmacy in Todmorden apart from a distance selling provision that does not offer a face-to-face service There is limited access to pharmaceutical services outside the Boots on these hours which limits choice.

4.9 Ms Asha Khan’s representative attaches comments on the pharmaceutical services offered in Todmorden recorded at pages 69 and 70 of the draft 2018 PNA. Page 68 shows that 74.1% of patients in Todmorden are unable to get to a pharmacist of their choice. It is Ms Asha Khan’s case therefore that there is no reasonable choice with regard to obtaining pharmaceutical services.

Protected characteristics

4.10 Significant benefits will be offered with regard to “people who share a protected characteristic having access to services that means specific needs for pharmaceutical services that in the area of the relevant HWP, are difficult for them to access...”

4.11 There are a number of health needs in the Calderdale area indicating there are a higher than average number of people who share the protected characteristic of disability. According to the 2014 local health profile for Calderdale, deprivation is higher than average and about 20,9% of children live in poverty. There is a higher number of children classified as obese than the average for England, Hospital Stays due to alcohol related harm was higher than the average for England. 26.7% of Calderdale adults were classified as obese. Smoking related deaths were worse than the national average for England. The estimated prevalence of hypertension is thought to be 25,5%. In addition the levels of teenage pregnancy are higher than the England average.

4.12 Specifically in relation to Todmorden, there is a high level of the West Calderdale population recorded as having a limiting long term illness yet the number of pharmacies in the West Calderdale area is significantly lower than the number of pharmacies in the East Calderdale area. This suggests the services are not available where they are most needed. See page 22 of the 2015 PNA for the map illustrating this. There are therefore significant health needs in the area of the proposed site.

4.13 The services that are available to cater for those needs are not adequate. There are limited providers of the services, often only one, and they are generally only available at a site where there are complaints about the services on offer. It should be noted

that on the application form it was indicated that accreditation had been obtained. Clearly the position is that accreditation would be obtained when the premises are confirmed.

4.14 The services that are available are not accessible: according to 2011 census data 24.7% of households in Calder ward have no car or van which suggests that many people are relying on public transport and pedestrian access to their pharmaceutical services. For those who do have access to a car there are particular difficulties with parking in Todmorden. There is a Car park at the Todmorden Group Practice and Calder Community Practice however the combined list size is nearly 20,000 patients, there are usually long waiting times to see a doctor and the parking is lime limited. Page 68 of the draft 2016 PNA shows that 73,3% of Todmorden respondents who had a "blue badge” for parking were unable to park with in 10 metres of their usual pharmacy.

4.15 In relation to pedestrian access, the nearest pharmacy open on a Sunday is in Hebden Bridge, a round trip of at least 9 miles which is unlikely to be viable for a person seeking face to face pharmaceutical services.

4.16 Public transport is available but a bus to Halifax where there are four 100 hour pharmacies is a round trip of approximately an hour and a half.

4.17 It can be seen from pages 36 and 39 of the Calderdale PNA that there are no pharmacies in the East Calderdale holding 100 hours contract and there is very limited Sunday opening in the Todmorden area. As stated in Ms Asha Khan’s representative’s letter to NHS England the hours offered by Ms Asha Khan’s application tie in with the opening hours of the GP surgeries. The surgery hours for the Todmorden Group PractIce are 8.30am to 17.30pm Monday to Wednesday and Friday. On Thursday there are surgeries that start at 7.00am and finish at 19.30pm. The surgery times for the Calder Community Practice are 8.00am to 18.30pm on Monday Tuesday Thursday and Friday. On Wednesday there are surgeries between 8.00am to 20:00pm and on Saturday from 8.00am until 12,00 noon. The out of hours provision for medical services in Todmorden is offered by a walk in centre which is also located at the Lower George Street premises occupied by the Todmorden Group Practice and the Calder Community Practice. It is open on Saturday and Sunday and Bank holidays from 8.00am to 20:00pm. The times offered by Ms Asha Khan’s in her application would cover the walk in service and the early morning and late night opening of the GP surgeries. Please see attached letter from Calderdale Community Practice who are also involved in their walk in centre.

Innovative Service

4.18 NHS England has to have regard to "there being innovative approaches taken with regard to the delivery of pharmaceutical services ....” Ms Asha Khan proposes to work with their own pharmacy practitioner to help approve diagnoses and treatment of patients with diabetes and undetected hypertension, The specific arrangement would be as follows :-

4.18.1 Hypertension - Patients would borrow a 24 hour Ambulatory Blood Pressure monitor (ABPM) to detect hypertension (this is usually done by nurses in GP surgeries who fit the monitor and recording device onto patients' arms.) The patient would return 24 hours later and the returns would be downloaded onto paper from the recording device. From experience patients have to join a waiting list or wait several weeks to have an ABPM fitted and then come back to the GP for a review of their results. Ms Asha Khan is offering to undertake this role for patients working closely with GP surgeries and passing the results to the GP to reduce waiting times i.e. preventing undetected hypertension.

4.18.2 Diabetes - It is proposed to have at least 2 sessions a week, using the 2 consultation room model to check glucose levels and provide education on the use of medication and insulin pens for patients. In current pharmacy settings this can be difficult as the pharmacist would be busy undertaking daily routine work but with Ms Asha Khan’s service, there would be a practitioner on site who would fulfil this service. Ms Asha Khan would also develop a mobile phone App to follow their progress and upload their dietary intake.

4.19 This links into the issues of obesity in the health/wellbeing area letters in support of the significant benefit Ms Asha Khan would be offering are attached.

4.20 In all the circumstances this application offers significant benefits to persons in the area of their relevant health and wellbeing board which were unforeseen when the relevant pharmaceutical needs assessment was published and Ms Asha Khan asks that the FHSAU allow her appeal.

Annex C

1 Trevelyan Square Boar Lane Leeds LS1 6AE

Tel: 0113 86 65500 Fax: 0207 821 0029 Email: [email protected] 1 Summary of Representations

This is a summary of representations received on the appeals.

1.1 COMMUNITY PHARMACY WEST YORKSHIRE

1.1.1 SHA/19876

1.1.2 Community Pharmacy West Yorkshire members still feel that their comments made in their letter to [NHS England] on 8 September 2017 are valid. These were as follows.

1.1.3 Members noted that this was an application for “unforeseen benefits” and fell to be considered under the provisions of Regulation 18 of the National Health Service (Pharmaceutical Services) Regulation 2013.

Regulation 18(1)

1.1.4 The PNA for Calderdale clearly states that current community pharmacy service provision is sufficient in meeting the pharmaceutical needs of the local population, and that there are no gaps in current provision.

1.1.5 Calderdale Council’s substantial work when developing the PNA did not identify that opening a new pharmacy in this area would secure improvements, or better access, to pharmaceutical services.

1.1.6 The distance to, and choice of, pharmacies for residents in Todmorden has not changed and were considered in detail during the production of the PNA. Therefore, it cannot be said that improvements to opening hours, choice or location of a new pharmacy in the area indicated by the Applicant were unforeseen at the time of writing the PNA.

Regulation 18 paragraph (2)

1.1.7 Regulation 18(2)(a) – members felt that the granting of this application could be detrimental to the arrangements the NHSCB has in place for the provision of pharmaceutical services but were not sure this would be significant.

1.1.8 Regulation 18(2)(b) generally –The applicant states that current pharmacy hours do not reasonably cover the hours required by local residents or provide adequate cover for GP services locally. The members noted that the hours proposed by the applicant offered only 3 additional hours of pharmaceutical provision per week and did not feel that these additional hours were of any significant benefit to the population. The existing pharmacies have been responsive to changes in local need demonstrated by the current opening hours of local pharmacies to extend pharmaceutical provision into the out-of-hour period, including opening on a Sunday.

1.1.9 The members noted that the area of the proposed premises (on A646 between Roomfield Street and Major Street) would be a short (max 0.2 miles, 4 minute walk) walk along a flat, well-lit pavement from Boots Pharmacy, Todmorden Health Centre.

1.1.10 The granting of this pharmacy would not improve access for patients, including those households without access to a vehicle, as the proposed premises would be sited near existing pharmacy contractors and the proposed opening hours over and above that already available from the existing contractors in the area are minimal.

1.1.11 Regulation 18(2)(b)(i) – Members noted that the applicant has not given any evidence that there is not a reasonable choice with regard to obtaining pharmaceutical services in this area. Although the two existing pharmacy contracts are owned by the same organisation, each pharmacy is a separate pharmacy contractor and offers the population a choice in services, pharmacy teams, responsible pharmacist, opening hours, location and style of pharmacy (health centre and high street shop).

1.1.12 The Calderdale PNA states that ‘all areas of Calderdale have a reasonable choice of pharmaceutical services’. Additionally the PNA specifically responded to a query raised in relation to Todmorden having two pharmacies owned by the same contractor group within the public consultation undertaken as part of the production of the PNA. The PNA response was ‘the PNA has considered geographical access to pharmacies, and has not identified any gaps based on accessibility on foot or by public transport. Provision of services must be reasonable given population density and the provision of other local services in an area’.

1.1.13 The members also noted a previous unsuccessful application, subsequent appeal and Judicial Review (Assura vs Moss 05/12/2008) in relation to choice in Todmorden based on the current two pharmacy contractors being owned by the same pharmaceutical service contract company.

1.1.14 The granting of this pharmacy would not be needed as residents already have a reasonable choice of pharmaceutical services which they are already accessing without problem.

1.1.15 Regulation 18(2)(b)(ii) – The applicant has produced no evidence that people who share protected characteristics have any difficulty if accessing pharmaceutical services in the area or that the granting of this application would in any way benefit them.

1.1.16 Regulation 18(2)(b)(iii) – The applicant has provided no evidence that they have considered innovation or will be offering services which could be classed as innovative.

Conclusion

1.1.17 Community Pharmacy West Yorkshire determined that the granting of this application would not confer significant benefits on persons in the area which were not foreseen when the PNA was published and so should be refused.

1.1.18 Members wish these comments to be taken in to consideration by [NHS Resolution] and wish to be notified of the decision.

1.1.19 SHA/19877

1.1.20 Community Pharmacy West Yorkshire members still feel that their comments made in their letter to [NHS England] on 3 November 2017 are valid. These were as follows.

1.1.21 Members noted that this was an application for “unforeseen benefits” and fell to be considered under the provisions of Regulation 18 of the National Health Service (Pharmaceutical Services) Regulation 2013.

1.1.22 Members also noted that this application was to be considered together and in relation to the application by Asim Bhatti Ltd for unforeseen benefits at Halifax Road A646 between Roomfield Street and Major Street, Todmorden OL14.

1.1.23 Regulation 18(1)

1.1.24 The PNA for Calderdale clearly states that current community pharmacy service provision is sufficient in meeting the pharmaceutical needs of the local population, and that there are no gaps in current provision.

1.1.25 Calderdale Council’s substantial work when developing the PNA did not identify that opening a new pharmacy in this area would secure improvements, or better access, to pharmaceutical services.

1.1.26 The committee noted that a distance-selling pharmacy, Todmorden Pharmacy, opened on the 19 September 2017. Although as a distance- selling pharmacy this pharmacy will be offering and able to provide pharmaceutical services to patients across England, it is likely that the residents of Todmorden may also be more aware of this additional offer of alternative pharmacy choice to them, all be it that they cannot access essential services face-to-face.

1.1.27 The distance to, and choice of, pharmacies for residents in Todmorden to a bricks and mortar pharmacy has not changed and were considered in detail during the production of the PNA. Therefore, it cannot be said that improvements to opening hours, choice or location of a new pharmacy in the area indicated by the applicant were unforeseen at the time of writing the PNA.

1.1.28 Regulation 18 paragraph (2)

1.1.29 Regulation 18(2)(a) – members felt that the granting of this application could be detrimental to the arrangements the NHSCB has in place for the provision of pharmaceutical services but were not sure this would be significant.

1.1.30 Regulation 18(2)(b) generally –The applicant states that current access to pharmaceutical services are not adequate to fulfil the needs of the local area. The existing pharmacies have been responsive to changes in local need demonstrated by the current opening hours of local pharmacies to extend pharmaceutical provision into the out-of-hour period, including opening on a Sunday. No evidence was presented that the opening hours of the current pharmacies within Todmorden are not sufficient to meet the pharmaceutical needs of the population.

1.1.31 The members noted that the area of the proposed premises (on A646 between Roomfield Street and Major Street) would be a short (max 0.2 miles, 4 minute walk) walk along a flat, well-lit pavement from Boots Pharmacy, Todmorden Health Centre.

1.1.32 The granting of this pharmacy would not improve access for patients, as the proposed premises would be sited near existing pharmacy contractors.

1.1.33 Regulation 18(2)(b)(i) – Members noted that the applicant has not given any evidence that there is not a reasonable choice with regard to obtaining pharmaceutical services in this area. Although the two existing pharmacy contracts are owned by the same organisation, each pharmacy is a separate pharmacy contractor and offers the population a choice in services, pharmacy teams, responsible pharmacist, opening hours, location and style of pharmacy (health centre and high street shop). Patients in Todmorden also have the option to use a distance-selling pharmacy.

1.1.34 The Calderdale PNA states that ‘all areas of Calderdale have a reasonable choice of pharmaceutical services’. Additionally the PNA specifically responded to a query raised in relation to Todmorden having two pharmacies owned by the same contractor group within the public consultation undertaken as part of the production of the PNA. The PNA response was ‘the PNA has considered geographical access to pharmacies, and has not identified any gaps based on accessibility on foot or by public transport. Provision of services must be reasonable given population density and the provision of other local services in an area’.

1.1.35 The members also noted a previous unsuccessful application, subsequent appeal and Judicial Review (Assura vs Moss 05/12/2008) in relation to choice in Todmorden based on the current two pharmacy contractors being owned by the same pharmaceutical service contract company.

1.1.36 The granting of this pharmacy would not be needed as residents already have a reasonable choice of pharmaceutical services which they are already accessing without problem.

1.1.37 Regulation 18(2)(b)(ii) – The applicant has produced no evidence that people who share protected characteristics have any difficulty if accessing pharmaceutical services in the area or that the granting of this application would in any way benefit them.

1.1.38 Regulation 18(2)(b)(iii) – The applicant has provided no evidence that they have considered innovation or will be offering services which could be classed as innovative. The applicant makes reference and proposals in relation to services linked to diabetes, hypertension and improving health outcomes. No such services are commissioned within the area and the applicant provides no information on how these services would be funded.

The committee noted that there was no guarantee or regulatory / contractual lever to ensure that the services offered within the application were then provided by the applicant.

1.1.39 Regulation 31

1.1.40 Regulation 31 does apply to this application. The site of the existing Todmorden Pharmacy is 55a Halifax Road, Todmorden and is therefore sited within the site proposed by the applicant as 55a Halifax Road is between Roomfield Street and Major Street. The applicant provides no assurance that two contracts will not operate at the same premises at the same time.

1.1.41 The committee noted the local press release for the opening of Todmorden Pharmacy in September 2017 in which the applicant, Asha Khan, is pictured.

1.1.42 [Newspaper article available for Committee]

1.1.43 The committee concluded that the application should be refused on the grounds that it cannot be assured that the application will not be in the same or adjacent premises to the current Todmorden Pharmacy.

1.1.44 Conclusion

1.1.45 Members did not support this application and determined that the granting of this application would not confer significant benefits on persons in the area which were not foreseen when the PNA was published so should be refused. It was additionally noted that the application should be refused on the grounds it has failed to satisfy that it would not be in breach of Regulation 31.

1.1.46 Members wish these comments to be taken in to consideration by [NHS Resolution] and wish to be notified of the decision.

1.2 RUSHPORT ADVISORY LLP REPRESENTING ASIM BHATTI (APPLICANT 19876)

1.2.1 Rushport Advisory LLP write on behalf of Asim Bhatti Limited in relation to [NHS Resolution’s] letter dated 24 April 2018 advising of full appeal to be submitted and SHA 19877 competing application from Ms Asha Khan.

1.2.2 Firstly, Asim Bhatti’s representative re-iterate the issues in terms of how NHS England have dealt and processed this application:

1.2.3 NHS England consideration of the application:

1.2.4 This application was submitted by Asim Bhatti August 2016 and should have been determined within 4 months. The application was determined March 2018 some 19 months following submission. In terms of a timeline:

1.2.4.1 August 2016- Application submitted

1.2.4.2 July 2017- NHS consultation period ends and representations are circulated

1.2.4.3 October 2017- NHS conduct a 2nd consultation process

1.2.4.4 November 2017- Deferral notice received due to competing application submitted

1.2.4.5 January 2018- NHS conduct 3rd consultation period.

1.2.4.6 March 2018- NHS England reject the application.

1.2.5 Asim Bhatti’s representative is concerned that NHS England has failed to consider this application in a timely and efficient manner the delays being so significant that a competing application submitted 15 months following Asim Bhatti’s application was considered at the same time.

1.2.6 In relation to SHA 19876:

1.2.7 In terms of opening hours this pharmacy offers to provide better/ improved access to pharmaceutical services for 69.5 core hours each week as per below:

Monday Tuesday Wednesday Thursday Friday Saturday Sunday Total 8am to 8am to 8am to 7am to 8am to 8am-3pm 10am- 69.5 7.30pm 7.30pm 7.30pm 7.30pm 7.30pm 2pm

1.2.8 Important to note:

1.2.9 GPs offer a 7am surgery on Thursday- currently no pharmacy is open.

1.2.10 There is a significant difference in terms of current access to pharmaceutical services and the better/ improved access this application will secure for people in the area.

1.2.11 The 2 accessible pharmacies in Todmorden are both Boots and Asim Bhatti’s representative’s local research has identified issues in terms of availability of commissioned services:

1.2.12 Boots are not offering the full range of commissioned services

1.2.12.1Bridge street offer

1.2.12.1.1Inhaler technique

1.2.12.1.2Stop smoking voucher service

1.2.12.1.3Minor ailments

1.2.12.1.4Supervised consumption

1.2.12.1.5Needle exchange

1.2.12.2Lower George Street offer

1.2.12.2.1Headlice service

1.2.12.2.2Stop smoking

1.2.13 Neither pharmacy offer emergency hormonal contraception, palliative care, alcohol interventions and NHS Flu Vaccination- each of these services are offered by the applicant. Moreover, as services are not consistently available across the Boots pharmacy stores this results in people in the area not knowing where or how they can access certain services compounded by the limited opening hours of these pharmacies.

1.2.14 Again, this issue will be resolved by this application affording better/ improved access to pharmaceutical services being the test to be secured under Regulation 18.

1.2.15 Asim Bhatti’s representative research in terms of patient satisfaction points to Boots keeping low levels of stock. This leaves their patients prone to more owings so they have to keep coming back to have their owing medication(s) redeemed which can be a great inconvenience for patients especially if they are unwell and especially with the long waiting times.

1.2.16 EG:

1.2.17 [Screen shot available for Parties – visited in July 2017. Posted 17 July 2017]

1.2.18 Boots use Alliance healthcare as their supplier for stock. This can be an issue when a certain product is short in the market. The advantage with an independent pharmacy is that the applicant would be using several suppliers including alliance Healthcare, AAH Pharmaceuticals, Phoenix and many other ‘short-liners’. This enables [the applicant] to source stock from different suppliers and is better in the long run as it reduces the frequency at which doctors have to prescribe alternative medication when a certain medication becomes scarce in the market.

1.2.19 Since this application was submitted in August 2016 Boots have extended their opening hours. This appears to be cynical in that they have been consulted on Asim Bhatti’s application and obviously see the need/ benefits of longer opening hours to satisfy local need and have therefore offered to amend their hours as a realisation of the need Asim Bhatti has identified. The long period of time taken by NHS England to consider this application has afforded Boots this opportunity which Asim Bhatti’s representative feel is unfair. With respect, Asim Bhatti’s representative ask that NHS Resolution is conscious that Boots have been operating for many years in Todmorden and that they have had plenty of opportunity to satisfy local need for better access but only choose to make an offer to increase hours in response to an application by a new party. Additionally, Boots have extended their supplemental hours and as such NHS Resolution cannot be guaranteed that these will remain in the future whereas Asim Bhatti offers to secure these hours contractually by core hours.

1.2.20 Asim Bhatti’s research evidences the need for a new pharmacy service as per the application.

1.2.20.1Plans to open a open a new supermarket and shopping area in Todmorden are going ahead. This will bring more people into the town, especially on weekends. Having a pharmacy open throughout the weekend period will definitely come in handy to local residents and those visiting the town.

1.2.20.2Asim Bhatti would be open on all bank holidays to accommodate for those requiring pharmacy services when very limited pharmacies will be open throughout. This will help alleviate pressure and workload on emergency health services such as the 111 out of hours service as some issues can be resolved locally within the pharmacy.

1.2.20.3Todmorden is in a vulnerable position at the end of a long valley, particularly at weekends. In the past Todmorden was in a great position; the public were able to choose from the best expertise locally from the hospitals in Littleborough, Rochdale, Burnley and

Halifax. Now all the hospital services have moved further away to Blackburn in one direction and Rochdale beyond, in the other.

1.2.21 Census and local demographics impacting on the health outcomes and needs of this population:

1.2.21.1According to the Office for National Statistics (ONS) 2014 Mid-year population estimates Todmorden Ward has a resident population of 12,357

1.2.21.2[Map and table available for Parties]

1.2.21.3Long term unemployment is a significant problem for Todmorden the proportion of all unemployed people in Todmorden who have been unemployed for over five year is 3.11% higher than the national average and 3.47% higher than the West Yorkshire average. Long term unemployment of over 1 year is also higher in Todmorden by 6.23%. A new independent pharmacy will bring about new job opportunities in the area. Asim Bhatti will have three pharmacy apprenticeship positions per year fully accredited through Burnley College. The qualifications gained through such an apprenticeship will open the doors to jobs in not just community pharmacy but also hospital and industrial pharmacy.

1.2.21.421.0% of Todmorden residents have a long term health condition or disability which is significantly higher than Calderdale overall (18.0%). Todmorden has a significantly higher all-cause mortality rate compared to Calderdale overall (706 deaths per 100,000 compared to 615 per 100,000) 12.1% of households comprise a lone pensioner, which is similar to Calderdale however overall Todmorden has a higher excess winter deaths ratio than Calderdale overall (33.6 compared to 28.8). 8.4% of 4/5 year olds are obese compared to 8.3% in Calderdale overall, however by the age of 10/11 the percentage has increased to 20.9% which is higher than Calderdale at 18.1%. Having a seven day pharmacy is crucial to maintain and improve health and well being for all, in particular those who are most vulnerable.

1.2.21.5[Map available for Parties]

1.2.21.6Using the Output Area Classifications tool which is the only geodemographic tool accredited as a National Statistic, we can see the geodemographic of Todmorden. The majority of the town is made up of ‘ageing rural flat tenants’. When compared with the parent group there is a higher proportion of people who are aged 65 and over, and they live in slightly denser populated areas. This is depicted by the green area. The darker of the pale pink refers to ‘communal retirement’ the population of this groups shows a higher proportion of 90 + and the light pink ‘self-sufficient retired’. There also seems to be a high volume of ‘established tech workers’, the population of this subgroup is slightly more likely to have Black ethnicity and more likely to be born in the UK or Ireland and have non dependent children. This is shown in pink. The brown areas relate to ‘white professionals’. The yellow is ‘young hard pressed families, households are privately rented, unemployment is higher.

1.2.21.7In Todmorden the proportion of students gaining 5+ GCSEs (A*-C) is 61.14, this is below the Calderdale average by 8.3%, it is also below the national average by 2.66%. When it comes to health and well being of young adults it is imperative that healthcare professionals

are easily accessible and have the time to educate the public on health concerns they may have and make them aware of health concerns which they may not be conscious of.

1.2.21.8In a community consultation carried out by Calderdale vital signs, the public were asked how they would rate healthy living. Less than 15% said it was excellent or that we are heading in the right direction. Nearly 30% said that they are in dire need of immediate corrective action and nearly 30% said that the issue was of concern and that their needed to be focus on it. Just over 30% said that some progress is being made but it is not being done quick enough. Having a seven day pharmacy available will help contribute to this gap in health needs of the local community.

1.2.21.9According to the Index of Multiple Deprivation 2015 22.900% of children aged 0 - 15 live in families that are "Income deprived" and 18.700% of people aged 60 or over are "Income deprived". This compares with 21.400% and 18.700% respectively for Calderdale as a whole.

1.2.22 In relation to people sharing a protective characteristic Asim Bhatti has identified:

1.2.22.1Disability 21%

1.2.22.1.1Long term health conditions

1.2.22.1.2All cause mortality

1.2.22.2Age 12% households contain a lone pensioner

1.2.22.3Age 65 years plus

1.2.22.4Age children 0-15 living in income deprived households

1.2.22.5Ethnicity

1.2.23 In terms of local feedback in relation to this application please see attached:

1.2.23.1Letter of support by local MP

1.2.23.2Local resident’s letters of support o Identifying current issues with current pharmaceutical services provision

1.2.23.3Local petition with 816 signatures

1.2.23.4online petition has gained 49 signatures again with comments describing issues with current pharmaceutical services provision.

1.2.23.5[screen shot of petition available for Parties]

1.2.24 In summary, Asim Bhatti has evidenced that current pharmaceutical service provision is none existent when required and/or is failing to satisfy the obvious needs of the local population and that the quality of pharmaceutical services is generally and widespread felt to be inadequate. These issues are not included in the PNA and therefore the benefits that this application offer to secure by way of better / improved access and reasonable choice to pharmaceutical services are relevant under Regulation 18 and must therefore confer significant benefits on people in the area of the application.

1.2.25 In terms of SHA 19877:

1.2.26 The application submitted by Asha Khan is clearly a ‘copycat’ application:

1.2.27 Asim Bhatti’s application is dated 1st August 2016 whilst the above application is dated 14th September 2017.

1.2.28 NHS England is required to consider an application within 4 months, Asim Bhatti’s application should have been determined by December 2016.

1.2.29 Asha Khan has had over 12 months knowledge of Asim Bhatti’s application and therefore to consider these applications together is incorrect and not the intent of the market entry regulations.

1.2.30 Their best estimate is exactly the same definition as Asim Bhatti’s application best estimate.

1.2.31 In terms of the Asha Khan application:

1.2.32 Having had over 12 months visibility of Asim Bhatti’s application their core hours are submitted as 85 hours, but Asim Bhatti’s hours clearly provide better/ improved access to pharmaceutical services above those of current contractors and satisfied this improved/ better access on submission of the application in August 2016. Again, Asim Bhatti’s application should have been determined by December 2016.

1.2.33 Their application provides a floor plan, Asim Bhatti’s representative finds this to contradict the fact that they have applied under a best estimate address. If they know or have a unit that allow them to put forward a floor plan, then their application should be a known address and not a best estimate.

1.2.34 The application makes reference to the PNA and providing services that are included through the document. If that is the basis of the application, then they are clearly offering to satisfy a current need and therefore this is not an unforeseen benefits application and therefore requires NHS Resolution to reject the application.

1.2.35 The application offers a delivery service, as NHS Resolution are aware a delivery service is not an essential pharmaceutical service and therefore no weight can be apportioned to deliveries.

1.2.36 The application offers in terms of innovation:

1.2.36.1“Innovative Services

1.2.36.2NHS England has to have regard to ‘there being innovative approaches taken with regard to the delivery of pharmaceutical services …’ Our client proposes to work with their own pharmacy practitioner to help approve diagnoses and treatment of patients with diabetes and undetected hypertension. The specific arrangement would be as follows:

1.2.36.3Hypertension – patients would borrow a 24 hour Ambulatory Blood Pressure monitor (ABPM) to detect hypertension (this is usually done by nurses in GP surgeries who fit the monitor and recording device onto patients’ arms). The patient would return 24 hours later and the results would be downloaded onto paper from the recording device. From experience patients have to join a waiting list or wait several weeks to have an ABPM fitted and them come back to the GP for a review of their results. Our client is offering to undertake this role for 20

patients working closely with GP surgeries and passing the results to the GP to reduce waiting times i.e. preventing undetected hypertension.

1.2.36.4Diabetes – it is proposed to have a least 2 sessions a week, using 2 consultation room model to check glucose levels and provide education on the use of medication and insulin pens for patients. In current pharmacy settings this can be difficult as the pharmacist would be busy undertaking daily routine work but with our clients service, there would be a practitioner on site who would fulfil this service. Our client would also develop a mobile phone App to follow their progress and upload their dietary intake.

1.2.36.5This links into the issues of obesity in the health/wellbeing area.”

1.2.37 However, neither of the 2 proposed services are essential services and therefore innovation in relation to essential pharmaceutical services is not being proposed by Ms Asha Khan.

1.2.38 [Supporting information provided]

1.3 NHS ENGLAND

1.3.1 Thank you for allowing NHS England the opportunity to provide representations in relation to the above appeals, NHS England would like to take this opportunity to make comment on the information provided by the appellant[s] as part of the appeal.

1.3.2 The representations below will take each appeal in turn dealing with SHA/19876 first.

SHA/19876 – ASIM BHATTI LTD

1.3.3 NHS England note on the letter provided by Rushport Advisory dated 19 March 2018 (Appendix A) that NHS England failed to consider the application in a timely and efficient manner, with the delay being so significant that a competing application was submitted and considered at the same time.

1.3.4 NHS England provided a timeline of events at the beginning of the committee report (Appendix B) which details the delay in processing the application. On point 7 of the committee report it states that NHS England received confirmation from the applicant that they wanted to carry on with the application despite the delays, a copy of the conformation email is attached at Appendix C. This indicates that the applicant was aware of the delays in the system and confirmed that they wanted to continue with the application.

1.3.5 NHS England refused the application by ASIM BHATTI LTD for inclusion in the Pharmaceutical List at Halifax Road, A646 The property between Roomfield Street and Major Street, Todmorden, OL14 (Best Estimate) on the grounds that the applicant had failed to demonstrate unforeseen benefits as required by Regulation 18 of the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013. NHS England refused the application for the following reasons;

1.3.6 Regulation 18 (1)

1.3.7 If –

1.3.8 (a) the NHSCB receives a routine application and is required to determine whether it is satisfied that granting the application, or granting it in respect of 21

some only of the services specified in it, would secure improvements, or better access, to pharmaceutical services, or pharmaceutical services of a specified type, in the area of the relevant HWB; and

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

1.3.10 in determining whether it is satisfied as mentioned in section 129(2A) of the 2006 Act(1) (regulations as to pharmaceutical services), the NHSCB must have regard to the matters set out in paragraph (2).

1.3.11 Regulation 18 (2)

1.3.12 (a) granting the application would cause significant detriment to –

1.3.12.1(i) proper planning in respect of the provision of pharmaceutical services in the Health and Wellbeing Board area; or

1.3.12.2(ii) the arrangements which the NHS Commissioning Board has in place for the provision of pharmaceutical services in the Health and Wellbeing Board area;

1.3.13 (b) notwithstanding that the improvements or better access were not included in the pharmaceutical needs assessment, granting the application would confer significant benefits on persons in the area (which were not foreseen when the pharmaceutical needs assessment was published), having regard to the desirability of –

1.3.13.1(i) there being a reasonable choice with regard to obtaining pharmaceutical services in the area of the Health and Wellbeing Board;

1.3.13.2(ii) people who share a protected characteristic (as listed in section 149(7) of the Equality Act 2010 - age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, and pregnancy and maternity) having access to services that meet specific needs for pharmaceutical services that, in the area of the Health and Wellbeing Board, are difficult for them to access, or

1.3.13.3(iii) there being innovative approaches taken with regard to delivery of pharmaceutical services

1.3.14 When determining the application from ASIM BHATTI LTD, NHS England considered the application in respect of the above regulation and it was determined that there was reasonable choice and sufficient arrangements with regard to the provision of pharmaceutical services in the Health and Wellbeing board area.

1.3.15 NHS England will take each of the points raised in the letter from Rushport Advisory dated 19 March 2018 (Appendix A).

1.3.16 NHS England (North – Yorkshire and the Humber) is the correct area team to be determining this application. Todmorden is a market town in the Upper Calder Valley in Calderdale, West Yorkshire. Calderdale CCG forms part of the West Yorkshire Sustainability and Transformation Plan (STP) footprint which has 9 CCGs and a population of approx. 2.5 million. A map showing the inclusion of Todmorden in Calderdale CCG and a map detailing the West Yorkshire STP is attached at Appendix D. 22

1.3.17 In relation to point one (a), NHS England did visit the town of Todmorden and in particular Halifax Road on 21 September 2017 in relation to a contractual issue at another pharmacy, therefore it was deemed not necessary to undertake a site visit in relation to this application.

1.3.18 With regards to point one (b) all papers for the committee are uploaded onto a portal for committee members to access. The MP letter was included, as part of the application, with the papers for the committee and each member could access these via the portal. Due to the size of the letters of support these were not uploaded onto the portal but tabled at the meeting. NHS England note in the minutes of the committee meeting (Appendix E) that there is no reference to either the MP letter or the letters of support being considered by the committee. This is an error on NHS England’s part as they were considered abet it verbally and the conversation was not recorded as part of the minutes.

1.3.19 In point two the statement included in the decision letter (Appendix F) regarding regulation 18 (1)(a) &(b) was a fact and confirms that the Calderdale PNA 2015-18 identified no gaps in service provision.

1.3.20 Point Three (a) as detailed in the minutes of the committee meeting (Appendix E), the committee considered the unforeseen benefit proposed by the applicant, which was to provide access to pharmaceutical services during extended opening hours to that already available. The Committee noted that the existing pharmacies in Todmorden provide access to services during evenings and on Saturday mornings. The Committee noted that whilst the proposed opening hours set out in this application would provide limited additional access.

1.3.21 Appendix four of the committee papers (Appendix G) details the comparison of opening hours between the proposed and existing pharmacies. This application by Asim Bhatti Ltd propose to provide 69.5 hour a week, an existing pharmacy provides a total of 65.5 hours therefore the unforeseen benefit provided by this application would be 3 hours, the committee agreed that this would not confer significant benefits.

1.3.22 In Point Three (b) of Asim Bhatti Ltd appeal NHS England agrees that Asim Bhatti Ltd did provide a list, in section 6 of the application form, of people with shared characteristics but did not as per regulation 18 (1)(b)iii identify any innovative approaches that would be undertaken in the provision of pharmaceutical services.

1.3.23 SHA/19877 – MS ASHA KHAN

1.3.24 NHS England refused the application by MS ASHA KHAN for inclusion in the Pharmaceutical List at Halifax Road, A646 The property between Roomfield Street and Major Street, Todmorden, OL14 (Best Estimate) on the grounds that the applicant had failed to demonstrate unforeseen benefits as required by Regulation 18 of the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013. NHS England refused the application for the following reasons. Please note that any reference to Regulation 18 will be referred to the above representation.

1.3.25 When determining the application from MS ASHA KHAN, NHS England considered the application in respect of Regulation 18 and it was determined that there was reasonable choice and sufficient arrangements with regard to the provision of pharmaceutical services in the Health and Wellbeing board area.

1.3.26 NHS England will take each of the points raised in the letter from Charles Russell Speechlys (CRS) dated 3 April 2018 (Appendix H).

1.3.27 PNA - NHS England can confirm that the PNA for Calderdale 2018-2021 had not been published at the time the application was received. The application was considered using the 2015-2018 published Calderdale PNA. In the Executive Summary of the PNA it states that ‘The conclusion of this PNA is that current community pharmacy service provision is sufficient in meeting the pharmaceutical needs of the local population, and that there are no gaps in current provision.’

1.3.28 Choice – The comments made by CRS refer to the comments contained within the draft 2018 PNA regarding the services offered in Todmorden, as these were in the draft 2018 PNA NHS England did not take these into account when making the decision in relation to this application it was the 2015-18 PNA that was used.

1.3.29 As per CPWY comments (Appendix I), ‘The distance to, and choice of, pharmacies for residents in Todmorden to a bricks and mortar pharmacy has not changed and were considered in detail during the production of the PNA.

1.3.30 Therefore, it cannot be said that improvements to opening hours, choice or location of a new pharmacy in the area indicated by the applicant were unforeseen at the time of writing the PNA.’

1.3.31 In terms of reasonable choice CPWY highlighted that the PNA specifically responded to a query raised in relation to Todmorden having two pharmacies owned by the same contractor group within the public consultation undertaken as part of the production of the PNA. The PNA response was ‘the PNA has considered geographical access to pharmacies, and has not identified any gaps based on accessibility on foot or by public transport. Provision of services must be reasonable given population density and the provision of other local services in an area’.

1.3.32 The members also noted a previous unsuccessful application, subsequent appeal and Judicial Review (Assura vs Moss 5 December 2008) in relation to choice in Todmorden based on the current two pharmacy contractors being owned by the same pharmaceutical service contract company.

1.3.33 Protected Characteristics – At the time of considering the application NHS England noted that the applicant had not included any information in relation to those patients with protected characteristics and how they had difficulty in currently accessing pharmaceutical services. The comments made by CRS continue to refer to the draft 2018 PNA which were not considered at the time of determining this application.

1.3.34 On page three of the comments made by CRS it states that ‘the nearest pharmacy open on a Sunday is Hebden Bridge’ when one of the existing Boots pharmacies has been responsive to changes in the local need and have extended pharmaceutical provision, to open on a Sunday 09.00-13.00.

1.3.35 In considering this application NHS England looked at and compared the proposed opening hours of both applications and the exiting contractors in the area (Appendix G). It was noted that the applicant was offering an additional 9.5 hours a week the committee noted in the minutes (Appendix E), that the application does offer to provide opening hours that are greater than the current opening hours provided by the existing pharmacies, but determined that these would not confer a significant benefit to patients, as the applicant had not identified any patient groups that were currently having difficulty in accessing pharmaceutical services.

1.3.36 It must also be noted that the letter referred to on page three from Calderdale Community practice was not submitted as part of the application form or supporting documentation and were not considered when this application was determined.

1.3.37 Innovative Services - The Committee discussed the innovative services proposed by the applicant in the applications. As stated in the minutes of the meeting (Appendix E) the ‘Committee noted that the provision of off-site consultations is not a NHS commissioned service and there are no plans to commission such a service. The Committee also noted that the delivery of medication is not a pharmaceutical service and there are no plans to commission such a service. It was noted in the report to the committee (Appendix J) that the applicant does make some reference to some innovation but that there was no guarantee that these would be provided and the Committee agreed that the applicant had not identified any innovative approaches to the provision of pharmaceutical services.

1.3.38 It must also be noted that the letters in support of the application referred to on page three were not submitted as part of the application form or supporting documentation and were not considered when this application was determined.

1.3.39 NHS England would wish that when considering this appeal the FHSAU takes into consideration the complex nature of both these applications.

1.3.40 [Appendices available for Parties]

1.4 BOOTS UK LTD

1.4.1 Please find attached a copy of Boots response to the above appeals.

[Boots provided a copy of Community Pharmacy West Yorkshire’s comments to NHS England:]

1.4.2 “Thank you for your letter dated 26th July 2017. This application has been considered by the applications subcommittee of Community Pharmacy West Yorkshire. Members with an interest took no part in the decision.

1.4.3 Members noted that this was an application for "unforeseen benefits" and fell to be considered under the provisions of Regulation 18 of the National Health Service (Pharmaceutical Services) Regulation 2013.

1.4.4 Regulation 18(1)

1.4.5 The PNA for Calderdale clearly states that current community pharmacy service provision is sufficient in meeting the pharmaceutical needs of the local population, and that there are no gaps in current provision.

1.4.6 Calderdale Council's substantial work when developing the PNA did not identify that opening a new pharmacy in this area would secure improvements, or better access, to pharmaceutical services.

1.4.7 The distance to, and choice of, pharmacies for residents in Todmorden has not changed and were considered in detail during the production of the PNA. Therefore, it cannot be said that improvements to opening hours, choice or location of a new pharmacy in the area indicated by the applicant were unforeseen at the time of writing the PNA.

1.4.8 Regulation 18 paragraph (2)

1.4.9 Regulation 18(2)(a) - members felt that the granting of this application could be detrimental to the arrangements the NHSCB has in place for the provision of pharmaceutical services but were not sure this would be significant.

1.4.10 Regulation 18(2){b) generally -The applicant states that current pharmacy hours do not reasonably cover the hours required by local residents or provide adequate cover for GP services locally. The members noted that the hours proposed by the applicant offered only 3 additional hours of pharmaceutical provision per week and did not feel that these additional hours were of any significant benefit to the population. The existing pharmacies have been responsive to changes in local need demonstrated by the current opening hours of local pharmacies to extend pharmaceutical provision into the out-of-hour period, including opening on a Sunday.

1.4.11 The members noted that the area of the proposed premises (on A646 between Roomfield Street and Major Street) would be a short (max 0.2 miles, 4 minute walk) walk along a flat, well-lit pavement from Boots Pharmacy, Todmorden Health Centre.

1.4.12 The granting of this pharmacy would not improve access for patients, including those households without access to a vehicle, as the proposed premises would be sited near existing pharmacy contractors and the proposed opening hours over and above that already available from the existing contractors in the area are minimal.

1.4.13 Regulation 18(2)(b)(i) - Members noted that the applicant has not given any evidence that there is not a reasonable choice with regard to obtaining pharmaceutical services in this area.

1.4.14 Although the two existing pharmacy contracts are owned by the same organisation, each pharmacy is a separate pharmacy contractor and offers the population a choice in services, pharmacy teams, responsible pharmacist, opening hours, location and style of pharmacy (health centre and high street shop).

1.4.15 The Calderdale PNA states that 'all areas of Calderdale have a reasonable choice of pharmaceutical services'. Additionally the PNA specifically responded to a query raised in relation to Todmorden having two pharmacies owned by the same contractor group within the public consultation undertaken as part of the production of the PNA. The PNA response was 'the PNA has considered geographical access to pharmacies, and has not identified any gaps based on accessibility on foot or by public transport. Provision of services must be reasonable given population density and the provision of other local services in an area'.

1.4.16 The members also noted a previous unsuccessful application, subsequent appeal and Judicial Review (Assura vs Moss 05/12/2008) in relation to choice in Todmorden based on the current two pharmacy contractors being owned by the same pharmaceutical service contract company.

1.4.17 The granting of this pharmacy would not be needed as residents already have a reasonable choice of pharmaceutical services which they are already accessing without problem.

1.4.18 Regulation 18(2)(b)(ii) - The applicant has produced no evidence that people who share protected characteristics have any difficulty if accessing pharmaceutical services in the area or that the granting of this application would in any way benefit them.

1.4.19 Regulation 18(2)(b)(iii) - The applicant has provided no evidence that they have considered innovation or will be offering services which could be classed as innovative.

1.4.20 Conclusion

1.4.21 Community Pharmacy West Yorkshire determined that the granting of this application would not confer significant benefits on persons in the area which were not foreseen when the PNA was published and so should be refused.”

1.4.22 [Supporting photograph provided]

1.5 CHARLES RUSSELL SPEECHLYS LLP REPRESENTING ASHA KHAN (APPLICANT FOR SHA/19877)

1.5.1 Ms Asha Khan’s representative wishes to respond as follows:

1.5.2 Regulation 31

1.5.3 In relation to Regulation 31 of the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013, as stated in Ms Khan’s letter of appeal, Ms Khan accepts NHS England's position that Regulation 31 does not apply. In any event, given that both applications are best estimate applications, it would be for NHS England to make an assessment of the applicability of Regulation 31 when the address of the proposed premises is notified under Schedule 2 paragraph 31.

1.5.4 Regulation 18

1.5.5 In relation to the matters under Regulation 18, these were set out in Ms Khan’s letter of 3 April 2018. However Ms Khan’s representative attach further letters in support of Ms Khan’s application. These highlight specifically to the difficulties that people with protected characteristics have in accessing face to face pharmaceutical services at times when other pharmacies in Todmorden are closed.

1.5.6 In relation to representations in Asim Bhatti Ltd's application, the appeal by that company against the refusal of the decision does not advance the company's application. Ms Khan’s representative reserves the right to comment further on any matters arising when Asim Bhatti Ltd makes a substantive response to the applications.

1.5.7 In the meantime Ms Khan’s representative adopt the points set out in its letter of 28 December 2017 to NHS England. Ms Khan’s position is that both applicants consider there should be a pharmacy at the location between Roomfield Street and Major Street in Todmorden. Ms Khan considers that her application should be preferred for the following reasons:

1.5.8 Opening hours. The opening hours Ms Khan is offering are significantly more extensive than those offered by the Asim Bhatti Ltd application. Ms Khan is offering, as core hours, an additional half hour in the evenings between Monday and Friday. Importantly, she is also offering an additional 5 hours on Saturday and an additional 8 hours on a Sunday. These additional hours are extremely important as no other pharmacy in Todmorden offers such extensive hours.

1.5.9 The hours tie in with the opening hours of GP surgeries. There are two GP surgeries in Todmorden, the Todmorden Group Practice and Calder Community Practice, both of which are located on Lower George Street just off Halifax Road. The surgery hours for the Todmorden Group Practice are 27

8.30am to 12.30pm Monday to Wednesday and Friday. On Thursday there are surgeries that start at 7.00am and finish at 19.30pm. The surgery times for the Calder Community Practice are 8.00am to 18.30pm on Monday, Tuesday, Thursday and Friday. On Wednesday there are surgeries between 8.00am to 8 .00pm and on Saturday from 8.00am until 12.00 noon. The application by Asim Bhatti Ltd would not cover the opening hours of the Calder Community Practice. Unless immediately co-located with the surgery, it would not cover the hours of the evening surgery for the Todmorden Group Practice.

1.5.10 The out of hours provision for medical services in Todmorden is offered by a walk-in centre which is also located at Lower George Street. It is open on Saturday and Sunday and Bank holidays from 8.00am to 8.00pm. The times offered by Ms Khan in her application would cover the walk-in service and would offer access to pharmaceutical services to the patients attending the out of hours service and receiving urgent prescriptions. The application by Asim Bhatti Ltd would not offer this access.

1.5.11 On this ground alone the application by Ms Khan should be preferred.

1.5.12 Premises. Ms Khan has sole rights to two of the three suitable premises originally identified within the best estimate address. The third is no longer on the market. The plan given in the application illustrated the two consulting room model that Ms Khan will adopt rather than being a representation of the specific premises. For reasons of commercial sensitivity Ms Khan would prefer not to give further details. There is no indication that Asim Bhatti Ltd has secured premises.

1.5.13 Services. Ms Khan application shows that the pharmaceutical services that she will offer will particularly assist people who share protected characteristics and the services that they need which are currently difficult for them to access. There have been discussions with the local surgeries about the service specification that would be required. (Attached a service specification that has been discussed with the local GP surgery that Ms Khan would be entering into on commencement of the contract).

1.5.14 Minutes

1.5.15 It appears that the Yorkshire and Humber Pharmaceutical Services Regulations Committee has misdirected itself in refusing the application submitted by Asha Khan It is stated in the Minutes "The application is offering to provide an additional 20 hours to what is currently available and could be of significant benefit to the existing population. The additional hours provided cover", the extended opening of Todmorden Health Centre and Calder Community Practice. The additional hours also provided cover for the "walk·in service" at Calder Community Practice on a Saturday and Sunday." Although the committee received comments from interested parties they made no findings in relation to them. Given the finding of significant benefit the Pharmaceutical Services Regulations Committee should have proceeded to grant Ms Khan’s application.

1.5.16 Ms Khan’s representative should be grateful if [NHS Resolution] would note that if there is an oral hearing Ms Khan would wish to attend and be represented at that hearing.

1.5.17 [Letters of support for application]

Further Letter from Charles Russell Speechlys LLP

1.5.18 Charles Russell Speechlys LLP would be grateful if [NHS Resolution] would place the two enclosed patient comments with the enclosures in its letter of 23 May [as above]

1.5.19 [Letters of support for application]

1.6 COMMUNITY PHARMACY LANCASHIRE

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

1.6.2 CPL note that these are applications for inclusion in a pharmaceutical list; Routine Application offering Unforeseen Benefits Best Estimate and should one be required CPL would be willing to attend an oral hearing if it were to be deemed necessary.

1.6.3 As CPL stated in its original letter of objection CPL are the neighbouring LPC its nearest pharmacies situated only five miles away in Bacup.

1.6.4 After reviewing the Pharmaceutical Needs assessment for Calderdale for 2018-2021, CPL can see very few reasons why the application[s] should be granted for inclusion onto the Pharmaceutical List.

1.6.5 Firstly, looking ahead, Todmorden has a relatively low amount of new housing allocations. The largest amount is planned in the Brighouse area of Calderdale, however even the amount planned in this area would not significantly decrease the amount of pharmacies per 100,000 population. Considering this information, it is evident that future growth has sufficient current pharmacy coverage to meet the needs of future population of Calderdale and Todmorden specifically.

1.6.6 The PNA noted that taking all information into account from the assessment that it has not identified any future needs which cannot be met by providers currently on the pharmaceutical list.

1.6.7 However, the Todmorden area is lacking an extended hours pharmacy. The area has no 100 hour pharmacies and according to the Patient Survey conducted in the area around 95% of the respondents say they would use it if it was available, however this does not automatically indicate that the current service provision does not meet their needs already. It must be noted that the area does already have service provision on Sundays and Saturdays.

1.6.8 In conclusion, and in agreement with the PNA 2018-2021, there is no evidence to suggest that the current pharmaceutical needs of Todmorden and Calderdale is such that the market entry applications should be granted – sufficient current service provision should be a key factor into its rejection.

1.6.9 At a time when the system is under major financial constraints it would be detrimental to current pharmaceutical care provision.

1.6.10 CPL respectfully request therefore that NHS Resolution reject this appeal.

Community Pharmacy Lancashire’s Letter to NHS England

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

1.6.12 CPL cover the Lancashire area only and therefore make the following observations based on the close proximity of the application to its neighbouring border.

1.6.13 CPL note that this is a routine application and should one be required we would be willing to attend an oral hearing if it were to be deemed necessary.

1.6.14 Community Pharmacy Lancashire have had the opportunity to consider the application and would like to make the following comments;

1.6.15 The current PNA (Pharmaceutical Needs Assessment) for Lancashire (2015) states:

1.6.16 There is currently no need for any further additional pharmacies as current pharmaceutical service provision is deemed adequate across Lancashire

1.6.17 Further:

1.6.18 Across Lancashire, the number of pharmacies per 100,000 people is 25 compared to the England average of 22 and the North West average of 26. There is good coverage in terms of opening hours across the country.

1.6.19 Reading the application it states opening hours as a restriction, compared to the current contractors already present the application would only differ from the Boots Health centre by opening four hours extra on a Saturday which are more than adequately covered by the Boots on Bridge Street. Additionally CPL understand that if opening hours were to be a concern the present contractor(s) should be given the opportunity to open longer hours before an additional contract is considered.

1.6.20 In Bacup (Lancashire) which is only five miles away there are an additional three pharmacies (Lloyds Healthcentre Pharmacy, Lloyds Local Pharmacy and a Boots Local Pharmacy).

1.6.21 CPL is not aware that one company owning both the Pharmacy Contracts for a small town is a barrier to pharmaceutical care.

1.6.22 In conclusion, CPL submit that the Applicant has failed to demonstrate that granting the application would confer significant benefits not foreseen at the time the Lancashire PNA was published. CPL respectfully request therefore that PCSE for NHS England reject this application.

2 Observations

2.1 RUSHPORT ADVISORY LLP REPRESENTING ASIM BHATTI (APPLICANT 19876)

2.1.1 Please find Asim Bhatti’s Representative’s comments in relation to final observations.

2.1.2 Asim Bhatti’s Representative note NHS England’s rationale for the significant delay in processing Asim Bhatti’s application:

2.1.3 [Quotes paragraphs 1.3.3 and 1.3.4 of Annex C as above]

2.1.4 Firstly, Asim Bhatti’s Representative has not been provided with any timeline or rationale for the delay in processing the application other than PCSE email

stating an issue with a diary change which is included in NHS England’s Appendix C:

2.1.5 “My apologies for the delay in getting back to you about this, firstly we had to confirm that the core hours on the application form were acceptable. This was also an issue with other unforeseen benefits applications at the time and the issue had to be resolved with the local area teams. Unfortunately after the issue was resolved the application was not progressed due to changes we made to our diary process that caused the diary entry to be lost.”

2.1.6 And secondly, this email is dated 17 April 2017 and although NHS England were aware of concerns in terms of timely consideration of the application a decision was communicated March 2018. It still took almost 12 months for the application to be processed.

2.1.7 In terms of NHS England confirming that the Applicant still wanted the application to be considered again, this was confirmed by Asim Bhatti’s Representative on behalf of Asim Bhatti on 17 April 2017 and almost 12 months later a decision was communicated. Of course the Applicant still wanted the application to progress and it is extremely naïve of NHS England to think otherwise as Asim Bhatti has already invested significantly in the application process in terms of application fees, consultant fees, time and property dealings.

2.1.8 Asim Bhatti’s Representative find it incredible that NHS England try to defend their consideration of this application.

2.1.9 Asim Bhatti’s Representative stand by its view as previously communicated:

2.1.10 This application was submitted by Asim Bhatti’s August 2016 and should have been determined within 4 months. The application was determined March 2018 some 19 months following submission. In terms of a timeline:

2.1.10.1August 2016- Application submitted

2.1.10.2July 2017- NHS consultation period ends and representations are circulated

2.1.10.3October 2017- NHS conduct a 2nd consultation process

2.1.10.4November 2017- Deferral notice received due to competing application submitted

2.1.10.5January 2018- NHS conduct 3rd consultation period.

2.1.10.6March 2018- NHS England reject the application.

2.1.11 Asim Bhatti’s Representative is concerned that NHS England has failed to consider this application in a timely and efficient manner the delays being so significant that a competing application submitted 15 months following Asim Bhatti’s application was considered at the same time.

2.1.12 NHS England continue to make errors in their communications, they show a table of services on page 29 of their submission:

2.1.13 [Table available for Parties]

2.1.14 NHS England has clearly misrepresented themselves as the application form clearly states ‘Please give details of any advanced and enhanced services you intend to provide’ :

2.1.15 “Please give details of any advanced and enhanced services you intend to provide. These details should include:

2.1.15.1Confirmation that you are accredited to provide the services where that accreditation is a prerequisite for the provision of the services;

2.1.15.2Confirmation that the premises are accredited in respect of the provision of the services where that accreditation is a prerequisite for the provision of the services; and

2.1.15.3A floor plan showing the consultation area where you propose to offer the service, where relevant. Where a floor plan cannot be provided please set out the reasons for this.”

2.1.16 Asim Bhatti has then listed the services that they intend to provide which NHS England has marked as N on their report and is wrong to do so.

2.1.17 [Table from application form available for Parties]

2.1.18 Asim Bhatti is listing and confirming the services they intend to provide.

2.1.19 Asim Bhatti’s Representative agrees with the LPC in terms of the application by Asha Khan.

2.1.20 [Newspaper cutting available for Parties]

2.1.21 [Quotes 1.1.43 of Annex C as above]

2.2 CHARLES RUSSELL SPEECHLYS LLP REPRESENTING ASHA KHAN (APPLICANT FOR SHA/19877)

2.2.1 Ms Asha Khan has three final observations to make in rebuttal of the information that has already been provided. Her comments are in relation to the letter from Rushport Advisory and are as follows:

2.2.1.1 It is suggested that it is not appropriate to consider the applications together. In fact there is provision within the NHS (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 for NHS England to invite other applications. The purpose behind this provision is to ensure that the best service provider is selected. Ms Asha Khan’s Representative say that the benefits offered by Ms Asha Khan are significant and it would not be fair to the local patient groups to remove them from consideration.

2.2.1.2 In relation to the floor plan put forward by Ms Asha Khan, it [is] clear that it is illustrative and demonstrates the two consultation room model that is important to the way Ms Asha Khan will offer her services.

2.2.1.3 Rushport Advisory suggests that the application may not be an unforeseen benefit application. Paragraph 1 of Regulation 18 states NHS England is required to determine whether it is satisfied that granting the application would secure improvements or better access to pharmaceutical services and the improvements or better access that would be secured were not included in the relevant Pharmaceutical Needs Assessment. 32

2.2.2 Throughout the application process it has been clear that the main improvement or better access that will be provided by Ms Asha Khan is the considerably improved access to pharmaceutical services secured by extended opening hours in the area to Todmorden. Ms Asha Khan’s Representative reiterates that Ms Asha Khan will be open for 85 core hours with early opening on a Thursday at 7 am to tie in with the surgery and late opening until 8.00pm on every day of the week.

2.2.3 This is a significant benefit which was not included in the relevant Pharmaceutical Needs Assessment.

2.2.4 For the reasons stated in its previous correspondence, Ms Asha Khan’s application should be granted.

2.2.5 Ms Asha Khan’s Representative look forward to hearing from you with notification of the pharmacy appeals committee's decision in due course. As previously stated, if there is an oral hearing Ms Asha Khan would want to attend and be represented.

2.3 BOOTS UK LTD

2.3.1 Boots wish to make the following comments.

Rushport Advisory LLP– on behalf of Asim Bhatti

2.3.2 Boots can confirm that the information stated with regards to the services currently offered by our Boots is incorrect.

2.3.3 Boots, Todmorden Health Centre - this pharmacy provides an extensive range of services including: NHS Head Lice, Flu vaccinations, stop smoking, emergency hormonal contraception, medicine check-ups, medicine use reviews, new medicines service, urgent medicine supply advanced service, minor ailments, supervised consumption, travel health, domiciliary dosage system, Macmillan pharmacist and free prescription collection and delivery.

2.3.4 Boots, Bridge Street - this pharmacy provides an extensive range of services including Needle Exchange, Emergency Supply, Inhaler technique, Minor ailments, Flu vaccinations, stop smoking, supervised consumption, emergency hormonal contraception, appliance dispensing, travel health, medicine check-ups, medicine use reviews, new medicines service, care home services, Macmillan pharmacist and free prescription collection and delivery.

2.3.5 Boots can therefore confirm that its pharmacies do offer emergency hormonal contraception, palliative care, alcohol intervention and NHS Flu vaccination service.

2.3.6 Rushport Advisory LLP makes reference to supply of stock. Boots would like to assure NHS Resolution that Boots UK Ltd have a dedicated Supply Team who endeavour to get medication to patients. Should there be any shortages, they have access to other suppliers and work with them to fulfil prescriptions in the best way they can. Boots are not aware of any current issues in the supply of medicines to its patients in Todmorden.

2.3.7 Boots took a decision to increase its opening hours at its store within the Todmorden Health Centre last summer, with effect from August 2017. This was 12 months after this application was initially submitted by Asim Bhatti Ltd. Therefore, it cannot be suggested that this was in direct response to such an application and Boots believe that this statement holds no weight.

However, the fact remains that the patients of Todmorden and surrounding areas have pharmaceutical access on both a Saturday and Sunday.

2.3.8 Boots do not believe that a new supermarket will have a huge effect on people requiring pharmaceutical services and believe that those who may use a new supermarket already access the existing providers should they choose to do so.

2.3.9 Boots fail to see how the opening of a new pharmacy will bring a significant number of job opportunities to the area. Boots also fail to see how this is a matter relevant to the pharmaceutical regulations to which this application relates.

2.3.10 As previously stated, Boots pharmacy within Todmorden Health centre offers a 7 day service to patients and out pharmacy on Bridge Street is open all day Saturday.

Letters and petition

2.3.11 Boots are disappointed that this is the first it has seen these letters. However, Boots believe that the issues have been addressed and are no longer of concern or relevance.

2.3.12 It is of note that some of the letters are addressed to the Appeals Unit, but are dated in the first part of 2017, a whole year before the applications were determined and appealed? Boots are a little confused as to why.

2.3.13 Many of the letters enclosed, are dated over one year ago and there have been many changes since then. The Boots store in the health centre now offers a 7 day service and the distance selling pharmacy has opened (September 2017). Whilst this is not a pharmacy offering face to face NHS Essential services, it is open, visible and patients are likely to know it is there should any patient wish to utilise their services, therefore offering choice and extended hours.

2.3.14 To reiterate;

2.3.15 Boots at Todmorden Health Centre is open from 8am – 7.30pm Monday to Friday and 9am – 1pm Saturday and Sunday.

2.3.16 Boots on Bridge Street is open from 9am – 5.30pm Monday to Friday and 9am – 5pm on Saturday.

2.3.17 Neither of Boots stores routinely shut at lunchtimes.

2.3.18 If a need was identified for Boots to open longer, it would work with NHS England to provide such hours. Boots note that the PNA does not at this time identify such a need. It is Boots understanding that the uptake of pharmaceutical services at out Health Centre store is low on Sundays. Boots are committed to provide services during these times and will continue to do so.

2.3.19 Todmorden Pharmacy advertises their opening hours on line and in their window. Patients can access the pharmacy to purchase medicines and utilise non-essential NHS services. Boots are sure that the healthcare professionals at this pharmacy would advise patients how to use the distance selling pharmacy and would do what they could to help in an emergency. Boots enclose a copy of a page from Todmorden Pharmacies website displaying their opening hours and also an extract on the pharmacist and the services he provides. i.e how he is an advanced prescribing practitioner. 34

2.3.20 Boots store will be busy at certain times of the day due to its location within Todmorden Health Centre. Boots now have 3 permanent pharmacists working in this store to deal with busy periods and allow it to provide the best service it can to patients. Boots can also confirm that it has also carried out the following;

2.3.20.1waiting times has been a key focus and a “model day” implementation has been introduced within the store

2.3.20.2the team members (Pharmacists / Store Leader / Technicians & Healthcare Advisors) have also been on a training course for both operational efficiency in supporting patient safety and managing queues to allow and maintain the ethos of MECC (Making Every Contact Count)

2.3.20.3The adjustment to daily model day introduced over the last few months has also meant a reduction in stock supply issues by over 25% and is still coming down on a weekly basis in line with prescribing changes

2.3.20.4The store has also had on the ground field leadership support via a Pharmacy Operations and Governance Manager at least once a week alongside a Regional Professional Standards Manager

2.3.20.5To further support the store in attaining Live feedback around service they have also had a digital Customer Satisfaction App introduced over and above their mandatory CPPQ requirements

2.3.21 The change in model day and how the pharmacy is now operated has allowed Boots to have a pharmacist on view at the front dispensing and checking station continuously. Boots believe that this has allowed it to reduce waiting times, reduce risk and reduce any hand out errors. Whilst Boots are not aware of any complaints made to NHS England with regards to its stores, Boots has made changes to ensure that the service to patients is optimum.

2.3.22 Comments made with regards to parking and the 90 minute time restrictions are unlikely to be improved for patients should a new pharmacy be approved. Patients are still likely to park at the existing car parks and whilst Boots are unclear where the new proposed premises will be, there is restricted road parking along the busy Halifax Road and surrounding streets. Boots fail to see how accessibility would be improved.

2.3.23 It would seem that a petition has been carried out and Boots has received a redacted copy. There is no explanation as to how this was carried out and the method used to ask for patients to participate. It is unclear who carried out this petition and where. Boots therefore respectively ask the NHS Resolution give the relevant weight to this, which we believe to be very little.

Charles Russell Speechleys LLP– on behalf of Asha Khan

2.3.24 Boots has already addressed the point with regards to opening hours and 7 day opening.

Letters

2.3.25 Boots are again disappointed that this is the first it has seen these letters. However, Boots believe that the issues have been addressed and are no longer of concern or relevance.

2.3.26 The letter from a nurse at the Walk in service, mentions patients who may not have transport and may be unable to travel. Boots submit that if these patients are that unwell/ unable to travel, that they have managed to attend an appointment and therefore will be able to access a pharmacy if needs be. That aside, Boots pharmacy at the health centre is open until 1pm on a Saturday and Sunday and Boots pharmacy on Bridge Street is open until 5pm on a Saturday. The distance selling pharmacy is open until 8pm and as previously said, Boots submit that if required they could collect and deliver a prescription if required to do so.

2.3.27 Again, should a need be identified, Boots are happy to discuss its opening hours with NHS England.

2.3.28 Two additional letters were submitted by Charles Russell Speechleys and a covering letter dated 24 May 2018. Boots notice that both these letters begin with the same initial paragraph. Whilst Boots cannot comment as to why this would be, Boots question as to how these may have been received and what weight they should therefore be given.

2.3.29 To conclude;

2.3.30 There is now 7 day pharmacy provision in Todmorden and an additional provider has opened by way of a distance selling contract, which is highly visible opposite the Todmorden Health Centre. All commissioned services are being offered by the existing Boots stores and Boots UK Ltd are willing to discuss any additional services or hours should gaps be identified. Patients therefore have choice as to which pharmacy they wish to utilise. The Pharmaceutical Needs Assessment has not identified any gaps in services and Boots believe that should any needs arise, the PNA would be the correct document in which to highlight this.

2.3.31 Neither Applicant proposes to offer innovation in service delivery as set out in the regulations. Nor has either Applicant identified patients who share a protected characteristic that are having difficulty accessing services to meet their particular needs.

2.3.32 Boots fail to see what unforeseen benefit either application will secure or how either application will confer significant benefits not foreseen when the PNA was drafted. For these reasons Boots respectfully request that both applications be refused.

2.3.33 Boots have no comments to submit with regard to the timing of the determination of the applications, except to say that it believes that there is no need for any further pharmacy provision in Todmorden.

2.3.34 Please be aware that Boots UK Ltd would wish to attend any Oral Hearing that may be required in connection with these applications/appeals.

3 Late Comments

3.1 BOOTS UK LTD

3.1.1 Boots UK Limited agree with the decision of NHS England to refuse both the above applications. Boot agree with their determination for the following reasons:

Existing Pharmacy Services

3.1.2 There are currently three pharmacies within the market town of Todmorden:

3.1.2.1 Boots, Todmorden Health Centre, Lower George Street, off Halifax Road, Todmorden.

3.1.2.2 Boots, Bridge Street, Todmorden

3.1.2.3 Todmorden Pharmacy (distance selling/internet/mail order pharmacy) 55a Halifax Road, Todmorden.

3.1.3 Todmorden Health Centre which houses all GP services within Todmorden is centrally located within the town.

Boots, Todmorden Health Centre

3.1.4 Boots pharmacy at Todmorden Health Centre is within the same building as all the GP surgeries. This pharmacy is well placed to service all Todmorden patients whether or not they have visited their GP practice first.

3.1.5 There is ample free parking at the health centre for patients and excellent disabled access, with both ramps and power assisted doors into the premises.

3.1.6 Boots pharmacy is open from 8am – 7.30pm Monday to Friday and 9am – 1pm Saturday and Sunday. There is a permanent pharmacist in charge of the store.

3.1.7 This pharmacy provides an extensive range of services including: NHS Head Lice, Flu vaccinations, stop smoking, emergency hormonal contraception, medicine check-ups, medicine use reviews, new medicines service, urgent medicine supply advanced service, minor ailments, supervised consumption, travel health, domiciliary dosage system, Macmillan pharmacist and free prescription collection and delivery.

Boots, Bridge Street

3.1.8 Boots pharmacy at Bridge Street, is located in the main shopping area, next to market and main town centre car park. There is also on street parking next to the pharmacy.

3.1.9 The pharmacy has automatic doors and an ample consultation room as well as a permanent pharmacy manager in position.

3.1.10 Boots pharmacy is open from 9am – 5.30pm Monday to Friday and 9am – 5pm on Saturday.

3.1.11 This pharmacy provides an extensive range of services including:

3.1.12 Needle Exchange, Emergency Supply, Inhaler technique, Minor ailments, Flu vaccinations, stop smoking, supervised consumption, emergency hormonal contraception, appliance dispensing, travel health, medicine check-ups, medicine use reviews, new medicines service, care home services, Macmillan pharmacist and free prescription collection and delivery.

3.1.13 Boots pharmacies in Todmorden offer a twice delivery service six days a week to any patients that requires this service.

Todmorden Pharmacy

3.1.14 Todmorden Pharmacy is a distance selling pharmacy that opened September 2017. The pharmacy is located in a retail unit opposite the existing health centre.

3.1.15 Boots note that Todmorden Pharmacy objected to the application submitted by Asim Bhatti, stating in their letter to NHS England dated 14 October 2017 that ‘ the failed to see how the Applicant is offering improvements or better access given the current services already being provided’ but have not comment on the application by Asha Khan.

3.1.16 Community Pharmacy West Yorkshire (CPWY) have stated in their letter to NHS England dated 3 November 2017 that:

3.1.17 ‘The Committee noted that a distance selling pharmacy, Todmorden Pharmacy, opened on the 19th September 2017. Although as a distance selling pharmacy this pharmacy will be offering and able to provide pharmaceutical services to patients across England, it is likely that the residents of Todmorden may also be more aware of this additional offer of alternative pharmacy choice to them, …’

Location of the proposed pharmacy

3.1.18 Both applicants have applied for inclusion in the area of Halifax Road between Roomfield Street and Major Street. This covers a distance of approximately 350 metres, spanning approximately 200 metres either of the existing Boots health centre pharmacy. It also encompasses the existing Todmorden Pharmacy (distance selling) premises.

3.1.19 Charles Russell on behalf of Asha Khan have stated that Regulation 31(2)(b) does not apply as ‘there is no suggestion that any nearby pharmacies are in any way connected with this application’….

3.1.20 Boots accept that the applicant may not currently be connected with any nearby pharmacies but note from CPWY letter that the applicant appeared in the press release for the opening of Todmorden Pharmacy back in September. Boots enclose copies of the responses received from CPWY for information.

3.1.21 Furthermore, Boots note that there are very few premises that appear to be empty, for sale or to let along this stretch of Halifax Road. One of the few premises that does appear to be vacant is the premises directly next door to Todmorden pharmacy.

3.1.22 Todmorden Pharmacy is located at 55a Halifax Road, and we believe these were once part of the same premises (55 Halifax Road) as next door which may have been divided when Tod Interiors closed. (See enclosed photo).

3.1.23 Parking along and around Halifax Road is restricted (mix of yellow lines, time restrictions and permit only parking) along most of this stretch. Apart from the larger premises such Lidl or the Health Centre where parking is restricted to users of, few if any premises have dedicated parking.

3.1.24 The proposed location offers nothing by way of improved access due to its location and its close proximity to an existing provider. Furthermore, it cannot be guaranteed that should either application be successful, they will not open at, or adjacent to an existing pharmacy.

Pharmaceutical Needs Assessment (PNA)

3.1.25 Since the applications were submitted a new PNA has been published by the Calderdale Health and Wellbeing Board.

3.1.26 The 2015-2018 Calderdale PNA states that ‘The conclusion of this PNA is that current community pharmacy service provision is sufficient in meeting the pharmaceutical needs of the local population, and that there are no gaps in current provision.’

3.1.27 Since the previous PNA was published Boots pharmacies have voluntarily increased the hours services are available and the health centre now opens both Saturdays and Sundays. Boots have also increased the range of services provided as they have become available (NUMAS etc.). Boots believe this demonstrates that it has increased opening hours and services to meet local needs.

3.1.28 Should the HWB, NHS England or local commissioners require further services to be provided, or additional hours of service, then Boots would be happy to discuss the provision of such.

3.1.29 The 2018-2021 Calderdale HWB PNA states that:

3.1.30 “The conclusion of this PNA is that current community pharmacy service provision is sufficient in meeting the pharmaceutical needs of the local population, and that there are no gaps in current provision. This is demonstrated through the following:

3.1.30.1Calderdale has good coverage of necessary and other relevant pharmaceutical services across the borough in terms of choice, access and opening hours;

3.1.30.2Calderdale has slightly better coverage of community pharmacies when compared to England, The North of England and Yorkshire and Humber averages;

3.1.30.3The majority of Calderdale residents live within a one mile walk or fifteen minute public transport journey of a pharmacy;

3.1.30.4All areas of Calderdale have a reasonable choice of pharmaceutical services. The results of a public survey suggest that the majority of local residents are satisfied with pharmaceutical service provision;

3.1.30.5A wide range of enhanced or locally commissioned services are offered from community pharmacies across Calderdale, supporting the health and wellbeing needs of the local population;”

3.1.31 Decisions relating to previous applications in this locality have confirmed that patients have access to a reasonable choice of pharmaceutical services; this is reinforced by recent comments from CPWY and the current PNA.

3.1.32 Charles Russell Speechlys, who are acting for Asha Khan, have included letters of support of their new pharmacy within their appeal. Boots are unsure of how these letters have not only been received, but where the correspondence was sent to? It is of note that 3 of the 5 letters are all dated on the same day.

3.1.33 This is the first time Boots have seen the comments and had Boots been made aware of them, it would have gladly taken the opportunity to communicate with the patients directly and address their concerns. Boots will happily speak with the patients should they wish us to do so.

3.1.34 Neither applicant proposes to offer innovation in service delivery as set out in the regulations. Nor has either applicant identified patients who share a protected characteristic that are having difficulty accessing services to meet their particular needs.

3.1.35 Boots fail to see what unforeseen benefit either application will secure or how either application will confer significant benefits not foreseen when the PNA was drafted. For these reasons we respectfully request that both applications be refused.

3.1.36 Boots have no comments to submit with regard to the timing of the determination of the applications, except to say that it believes that there is no need for any further pharmacy provision in Todmorden.

3.1.37 Enclosures:

3.1.37.1Photo of 55 Halifax Street, Todmorden

3.1.37.2Photo of Todmorden Pharmacy at 55A Halifax Street, Todmorden

3.1.37.3CPWY responses to both applications.

3.1.37.4[Note these were provided at paragraph 1..4 of Annex C above]

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