QUEEN'S BENCH DIVISION
B e f o r e :
SITTING AS AN ADDITIONAL JUDGE OF THE HIGH COURT
| THE QUEEN ON THE APPLICATION OF ASSURA PHARMACY LIMITED
|NATIONAL HEALTH SERVICES LITIGATION AUTHORITY (FAMILY HEALTH SERVICES APPEAL UNIT)
|(1) FYLDE PRIMARY CARE TRUST (2) CO-OP HEALTH CARE LIMITED
|THE QUEEN ON THE APPLICATION OF ASSURA PHARMACY LIMITED
|NATIONAL HEALTH SERVICES LITIGATION AUTHORITY (FAMILY HEALTH SERVICES APPEAL UNIT)
|(1) CALDERDALE PRIMARY CARE TRUST (2) E MOSS LIMITED TRADING AS ALLIANCE PHARMACY
|THE QUEEN ON THE APPLICATION OF ASSURA PHARMACY LIMITED
|NATIONAL HEALTH SERVICES LITIGATION AUTHORITY (FAMILY HEALTH SERVICES APPEAL UNIT)
|(1) WEST KENT PRIMARY CARE TRUST (2) CANTERBURY PHARMACIES LIMITED (3) DAY LEWIS PLC (4) BOOTS THE CHEMIST LIMITED (5) A E HOBBS LIMITED
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Philip Coppel (instructed by Bevan Brittan) appeared for the Defendants.
Thomas Roe (instructed by Charles Russell LLP) appeared for Co-op Health Care Limited.
Beverley Lang QC (instructed by David Charlton, Alliance Boots Group Legal Services) appeared for E Moss Limited trading as Alliance Pharmacy.
Patrick Green (instructed by Vertex Law LLP) appeared for Canterbury Pharmacies Limited.
The other Interested Parties did not appear.
Crown Copyright ©
(i) The Freckleton Claim: Assura seek to quash a decision made by the PAC on 30 November 2006 dismissing an appeal against the earlier decision of the Fylde PCT to refuse Assura admission to the list in respect of a proposed pharmacy in the vicinity of Preston Old Road/Kirkham Road in Freckleton, Lancashire. There is currently one pharmacy in Freckleton, operated by Co-op Health Care Limited ("Co-op"), which intervened in the claim in support of the PAC's decision.
(ii) The Todmorden Claim: Assura seek to quash a decision made by the PAC on 25 January 2007 dismissing an appeal against the earlier decision of the Calderdale PCT to refuse Assura admission to the list in respect of a proposed pharmacy in the immediate vicinity of a new health centre development, Lower George Street, Todmorden, Yorkshire. There are currently two pharmacies in Todmorden, both operated by E Moss Limited trading as Alliance Pharmacy ("Alliance"), which intervened in the claim in support of the PAC's decision.
(iii) The Tunbridge Wells Claim: Assura seek to quash a decision made by the PAC on 22 January 2007 dismissing an appeal against the earlier decision of the South West Kent PCT to refuse Assura admission to the list and to allow the application of Canterbury Pharmacies Limited ("Canterbury") for preliminary consent to be included in the list in respect of a pharmacy in the vicinity of a new health centre development, St John's Road, Tunbridge Wells, Kent. Canterbury intervened in the claim in support of the PAC's decision.
The Statutory Scheme
"that, except in prescribed cases… -
(i) an application for inclusion in such a list by a person not already included and
(ii) an application by a person already included in such a list for inclusion also in respect of services or premises other than those already listed in relation to him,
shall be granted only if the [PCT is] … satisfied in accordance with the regulations, that it is necessary and desirable to grant it in order to secure in the neighbourhood in which the premises are located the adequate provision by persons included in the list of services, or some of the service provided in the application".
Therefore, this provision required regulations to be made to control entry to the pharmaceutical list which exclusively prescribed by whom NHS prescriptions could be met: and "control of entry" is used as shorthand to describe the process whereby PCTs assess whether it is necessary or desirable for a new pharmacy to dispense NHS prescriptions in order to secure adequate pharmaceutical services in a particular neighbourhood.
"(1) …[A]n application shall be granted by the [PCT] only if it is satisfied that it is necessary or desirable to grant the application in order to secure, in the neighbourhood in which the premises from which the applicant intends to provide the services are located, the adequate provision, by persons included in a pharmaceutical list, of the services, or some of the services, specified in the application ('the necessary or desirable test')".
This regulation replicates its immediate predecessor (i.e. Regulation 4(4) of the National Health Service (Pharmaceutical Services) Regulations 1992, 1992 SI No 662 as amended: "the 1992 Regulations").
"[I]n considering whether the necessary or desirable test is satisfied, a [PCT] shall have regard in particular to –
(a) whether or not any of the following services are already provided by persons in the neighbourhood in which the premises named in the application are located -
(i) any pharmaceutical services or directed services specified in the application provided by persons, included in a pharmaceutical list, or any directed services the applicant agrees to provide if his name is included in the pharmaceutical list… ;
(b) whether the recipients of pharmaceutical services already have a reasonable choice with regard to -
(i) the pharmaceutical services or directed services provided in the neighbourhood in which the premises named in the application are located, by persons included in a pharmaceutical list, and
(ii) the persons included in a pharmaceutical list from whom such recipients may obtain pharmaceutical services or directed services in the neighbourhood in which the premises named in the application are located;
(c) any other information available to the [PCT] which, in its opinion is relevant to the consideration of the application; and
(d) any representations received by the [PCT] …'.
(i) Although the four listed factors are ones to which the PCT must "in particular" have regard, in my view this does not indicate that they must give especial weight to these factors or any of them. The regulations merely require the PCT, when considering the "necessary and desirable" test, to have regard to these factors, in addition to any other relevant factors. None of the factors is determinative, or given pre-eminent or enhanced weight. The weight given to these factors or any of them is a matter for the decision-maker.
(ii) The factor listed at Regulation 12(2)(a) concerns the provision of services in the sense of access and availability, and includes such factors as geographical location and hours. Choice in Regulation 12(2)(b) is a discrete factor - separate from access/availability in the previous subparagraph - to which a decision-maker must have regard when considering the application of the "necessary or desirable" test. No doubt there is some relationship between these two factors: but, at the root of much misunderstanding and misapplication of these criteria is the elision of these two factors, or at least the failure to consider choice as a separate factor from simple access/availability of services (see, e.g., Paragraph 76 and following below). The statutory scheme requires regard to be had to each of these factors.
(iii) "Directed services" is a reference to additional pharmaceutical services provided in accordance with a direction under Section 41A of the 1977 Act: and "pharmaceutical services" for the purposes of the regulations means pharmaceutical services other than directed services, i.e. for the purposes of the regulations, "pharmaceutical services" is restricted in meaning to the essential Section 41 services (Regulation 2) (cf the different, wider definition in the Act itself: see Paragraph 6 above).
(i) Procedure (Paragraphs 14-18 below).
(ii) The "Necessary or Desirable" Test: The Adequacy of Provision (Paragraphs 19-42).
(iii) The "Necessary or Desirable" Test: The Choice Factor (Paragraphs 43-62).
The "Necessary or Desirable" Test: The Adequacy of Provision
(i) First, the PCT must identify the relevant "neighbourhood". In none of the cases before me was the identity or extent of the neighbourhood in issue, and I need not refer to this further.
(ii) Because an application can only be granted if the PCT is satisfied that it is necessary or desirable to grant the application in order to secure the adequate provision of pharmaceutical services in that neighbourhood, the PCT can only grant an application if the provision of relevant services is not already "adequate". I deal with the correct approach to the issue of adequacy below: but, on the face of the provisions, the PCT is bound to make a judgment as to whether the provision of relevant services in the neighbourhood is already adequate. If the provision is adequate, then the PCT must refuse the new application: if it is not, then the PCT must move to the third issue.
(iii) If there is an inadequacy of provision of relevant services, before the application is granted the PCT must be satisfied that it is necessary or desirable to grant the application in order to secure adequate provision of such services. That requires a second exercise of judgment on their part.
"Value judgments can never be precise, and they are susceptible to individual variation. They lack any arithmetical calculation; they are not commensurate with any fixed standards. They are the product of intellectual intuition. Hence, the decision-maker, applying the phrase in Regulation 4(4), may properly entertain doubts about the adequacy of any service provision. And if the decision-maker is a committee, the members comprising the committee's decision [sic] can reach only a consensus of value judgments ranging from the adequate to the inadequate, within the range of epithets along the continuum, from barely to seriously inadequate, or barely to entirely adequate. The lack of precision in the noumenon 'adequate' permits of a construction that imports a margin of appreciation in the application of the judgment about adequate provision. It is in this respect that the legislature intended to bring to bear the 'necessity' or 'desirability' concepts into relationship with 'adequate provision'. Thus the decision-maker asks himself/herself/itself, whether there is or is not adequate provision of the resources specified in the application. If the answer is 'wholly adequate', the conclusion will be the need to secure an adequate provision in the form of granting the application to supply them. If the answer if borderline - i.e. falls just one side of the or another of the line - then resort to 'desirability' will be preferred to fill a possible, although not certain, gap in the service provision. Does this give sufficient distinction in Regulation 4(4) to the two words 'necessary' or 'desirable'? I think it does…
My conclusion is that sense and meaning can be adequately accorded Regulation 4(4) in its entirety, by the decision-maker applying a loose value-judgment as to the adequacy of the service provision, as it exists, and employing, secondarily, the concepts of necessity and desirability in a fashion sufficient to supply the satisfaction to the decision-maker that the service specified in the applicant should be granted his, her or its application [sic] …
If there is a doubt in the mind of the decision-maker whether the current service provision is 'adequate', he may properly invoke the 'desirability' test, whereas 'necessity' would not be apt to supplement a service provision that might marginally qualify as being 'adequate'".
"13. Regulation 4(4) has, I think, caused difficulty, and in consequence given rise to much litigation, because its terms invite the decision-maker to make not one but (potentially at least) a series of value judgments; and because of the antithesis between 'necessary' and 'desirable', it is by no means entirely clear what is the relationship between the various possible judgments which may (depending upon the facts) fall to be made."
I briefly pause there, to express agreement with that paragraph. Particularly, Laws LJ perceptively and accurately identifies the real challenging issue raised by the "necessary and desirable" test, namely the relationship between the various value judgments that the decision-maker (initially, in England, the PCT) is required to make in applying the test.
"14. For my part, I agree with the general direction of Sir Louis Blom-Cooper's reasoning in Baker. With great respect, however, the language deployed is perhaps unnecessarily complex, and it is to be noted that the text of the report is here and there corrupt. I believe that the regulation's true construction may be expressed somewhat more simply through these following five steps.
1. A licence to provide pharmaceutical services is only to be granted under Regulation 4(4) for the purpose of securing in the relevant neighbourhood the adequate provision by listed pharmacists of the serves in question. So much is plain and elementary.
2. What is 'adequate' is a question of degree. There is, as it has been described, a spectrum or 'continuum' of adequacy.
3. That is, I think, ordinarily a feature of the term 'adequate' as a matter of language. But it is in any case a necessary feature of the term as it is used in Regulation 4(4) since if it were otherwise - if 'adequate' were to denote a single sharp edge, such that any given set of facts would fall plainly upon one or other side of it - then it would be impossible to arrive at any construction of the earlier phrase, 'necessary or desirable', other than one in which the word 'desirable' were otiose. If the provision were inadequate, it would simply be necessary to make it up by granting the application. If it were adequate, the application would have to be refused.
4. It follows that, while on the surface the first question for the decision-maker is simply whether existing provision is adequate, the real question is where on the sliding scale or spectrum of adequacy does this case on its facts belong.
5. To this, the logically available answers are:
(a) Wholly adequate. There is no magic in the word 'wholly': it simply refers to a state of affairs in which there is no question but that the existing provision suffices.
(b) Wholly inadequate. Again there is no magic in the adverb. This looks at a state of affairs where further provisions must necessarily be made.
(c) Marginal, or somewhere between (a) and (b). There the decision-maker may conclude that it is desirable to grant the application in order to secure adequate provision. But
(d) There may be some slippage between what it marginal and the extremes, wholly adequate or wholly inadequate. To that extent there may be slippage also between what is necessary and desirable. The judgment to be made is emphatically pragmatic".
"8. … Thereafter, in our opinion, the decision-maker must approach an application in two stages. First, it must consider whether the existing provision of pharmaceutical services in the relevant neighbourhood is adequate. If it decides that such provision is adequate, that is the end of the matter and the application must fail. If it decides that such provision is not adequate, it must go on to consider a second question: whether the provision of pharmaceutical services at the premises named in the application is "necessary or desirable" in order to secure adequate provision. We consider that such a two-stage approach is inherent in the logical structure of Regulation 5(10). The fundamental criterion against which the application is to be judged is the adequacy of pharmaceutical services in the relevant neighbourhood. A deficiency in those services must exist before an application can be granted. Consequently the existence of such a deficiency must be identified before it is necessary to consider what may be done to provide a remedy. The second question relates to the manner in which an identified deficiency is remedied."
I pause there to note that this analysis derives from the face of the words of the statutory provision and, as I have noted above (Paragraph 19), it is the analysis to which all of the parties were drawn in this case.
"9. In relation to the first question, we are of opinion that 'adequacy' is a simple concept, in the sense that there is no room for different degrees of adequacy, or a spectrum of adequacy. Either the pharmaceutical services available in the neighbourhood are adequate or they are not. That seems to us to be inherent in the ordinary meaning of the word, which denotes a sufficiency for a particular purpose, in this case the provision of pharmaceutical services in the relevant neighbourhood. The standard of adequacy is a matter for the decision-maker, whether that is the Pharmacy Practice Committee or the National Appeal Panel [the decision-making equivalents of the PCT and PAC, in Scotland]. In either case, the decision-maker is a specialist tribunal, and can be expected to apply its knowledge of the pharmaceutical business to the task of determining the appropriate standard.
10. The question that the decision-maker must address is the adequacy of the existing provision to serve the neighbourhood in question. In addressing that question, however, it is in our opinion proper to have regard to probable future developments, for two reasons. First, the standard of adequacy in a particular neighbourhood will obviously change with time. The relevant neighbourhood may change, for example through the construction of new housing developments or the movement of population out of inner-city areas. Likewise changes inevitably occur in pharmaceutical practice, and the standard of "adequate" pharmaceutical provision must accordingly develop over time. The proposal under consideration may well provide an illustration of how pharmaceutical practice is developing, and may be relevant to show what sort of provision is possible in the neighbourhood. We are in full agreement with the Lord Ordinary that changes in pharmaceutical practice should be taken into account by the decision-maker. Secondly, Regulation 5(10) uses the word 'secure' in relation to the adequate provision of pharmaceutical services. That word seems to us to indicate that the decision-maker can look to more than merely achieving a bare present adequacy of pharmaceutical provision. 'Secure' suggests that it should be possible to maintain a state of adequacy of provision into the future. That indicates that the decision-maker must have some regard to future developments, in order to ensure that an adequate provision can be maintained. The decision-maker must, however, determine the adequacy of the existing provision of pharmaceutical services at a specific time, the time of its decision. It must accordingly reach its conclusion on the adequacy of the existing provision on the basis of what is known at that time, together with future developments that can be considered probable rather than speculative. The decision-maker must also bear in mind that the critical question at this stage of its reasoning is the adequacy of the existing provision, not the adequacy or desirability of some other possible configuration of pharmaceutical services in the neighbourhood.
11. If the decision-maker determines that the existing provision of pharmaceutical services in the relevant neighbourhood is inadequate to meet the needs of the neighbourhood, it must go on to consider the question of how the deficiency can be remedied. It is at this point that it must consider whether the proposal in the application is "necessary or desirable in order to secure adequate provision of pharmaceutical services in the neighbourhood". In this context, two expressions used in the regulation call for comment. First, the words "necessary or desirable" are intended in our opinion to give flexibility in the manner in which a shortfall in provision is remedied. If the proposal under consideration does no more than make up the shortfall, that proposal will obviously be 'necessary' to secure adequate provision of pharmaceutical services in the neighbourhood. In some cases, however, the proposal may go further, and result in a degree of over-provision. The use of the word 'desirable' is in our view intended to permit the approval of such a proposal, if the decision-maker is satisfied that, notwithstanding the over-provision, the proposal is still 'desirable' in order to secure adequacy. It should be noted, however, that the expression 'necessary or desirable' is only relevant to the second question that the decision-maker must consider, namely how an identified inadequacy is to be remedied. It is not in our opinion relevant to the first question, whether such inadequacy exists in the first place. Secondly, as we have already noted, the use of the word 'secure' seems to us to indicate that it should be possible to maintain a state of adequacy of provision into the future. That could in some cases result in some over-provision. Subject to these comments, however, the question of whether a proposal is necessary or desirable in order to secure an adequate provision of pharmaceutical services is a matter for the Pharmacy Practice Committee or the National Appeal Panel as a specialist tribunal."
(i) The approach and test proposed for the future by Laws LJ was adopted by Thorpe LJ (Paragraph 28): and, although he expressed further comments which suggest he was not perhaps as much of a relativist as Laws LJ, the third member of the Court of Appeal (Buxton LJ) expressly adopted the reasoning of Laws LJ (Paragraph 24).
(ii) In Lowe, the judge at first instance (Janet Smith J, as she then was) gave permission to appeal to enable the Court of Appeal to give authoritative guidance (Paragraph 2).
(iii) The guidance was intended to be "emphatically pragmatic". It was given 7 years ago, and there is no evidence that decision-makers have had difficulties with it in practice.
(iv) No party before me sought overtly to challenge the propositions set out by Laws LJ in Lowe.
(v) It is at least arguable that the propositions formed part of the ratio decidendi of the case.
(i) Whilst it may be brave of a judge to give any opinion as to the ordinary usage of a word in the face of the respective courts of appeal of England & Wales and Scotland disagreeing upon that usage, in my respectful view I do not consider that Sir Louis Blom-Cooper QC and Laws LJ are correct in considering that, in ordinary language, "adequacy" is a relative concept and that consequently there is a spectrum or continuum of adequacy. "Adequate" derives from "adequatus" ("equalised"), and its primary meaning was "equal in magnitude or extent; commensurate; neither more nor less" - and by extension it has come to mean "commensurate in fitness; equal or amounting to what is required; fully sufficient, suitable or fitting" (Oxford English Dictionary, 2nd (Garner) Edition, Oxford University Press (1989): emphasis added). Although it has come to be used primarily qualitatively, meaning sufficient to fulfil a specific requirement particularly in respect of an identified standard or ability, this definition does not allow for any relativity. Therefore, one may have adequate conversational French for the purposes of holiday-making. However, if one has complete fluency in French, that may be said to be more than adequate for holiday-making: but to say that is "wholly adequate" is tautological. In respect of the ordinary usage of the word, I respectfully agree with Lord Drummond Young.
(ii) However, I accept that in law "adequacy" is a concept which takes its meaning from its context (see, e.g., R (A) v National Asylum Support Service  EWCA Civ 1473,  1 WLR 752). However, in context, in the relevant provisions with which I am concerned, other than the possible tension between "adequacy" as an absolute concept and giving "desirable" some content (with which I deal below: see Paragraph 41(iv)), there is nothing in the primary or secondary legislation which adopts the "necessary or desirable" test that requires "adequate" to have anything other than its ordinary meaning. Indeed, if it were intended to import relativity, one would have expected a different word or term to have been used: but, if not that, one would perhaps have expected the term to have been the subject of some better definition. For example, "choice" clearly imports relativity - one can certainly have a spectrum of choice - and, when that concept was introduced by Regulation 12(2)(b) of the 2005 Regulations, that was done by reference to "reasonable choice". For the reasons I have given, I do not consider that, in ordinary language, one can have "reasonable adequacy": but, had the draftsman intended "adequacy" to be a relative concept, one might have expected at least some such terminology.
(iii) Of course, words may acquire a meaning different from the ordinary meaning by way of legal usage. "Adequate consideration" in the law of contract is an example of an instance in which "adequate" has acquired such a legal meaning (although not, of course, one importing relativity). I was not referred to any authorities upon the meaning of "adequate" in other legal contexts, understandably perhaps as, if the word does have some meaning other than the ordinary meaning, then that alternative meaning must be context-driven. However, in R (A) v National Asylum Support Service  EWCA Civ 1473,  1 WLR 752, the Court of Appeal considered "adequate" accommodation which the National Asylum Support Service is bound to provide an asylum seeker and his family under Section 122 of the Immigration and Asylum Act 1999. "Adequate" was regarded as an absolute concept: "A balancing exercise has to be carried out with the question at the forefront - is the accommodation adequate for the needs of the disabled children in the circumstances which persist at that moment in time?" (at Paragraph 60, per Waller LJ). Closer to the wording of the statutory provisions which are pertinent in the case before me, in R (Gosforth Allotments & Garden Association) v Secretary of State for the Environment (1996) 72 P&CR D38, the court considered "adequate provision" under Section 8 of the Land Settlement Facilities Amendment Act 1925. Under that section, the Secretary of State shall not give an authority consent to sell etc an allotment unless he is satisfied that "adequate provision" is made for the displaced allotment holders. Although the issues raised were different from those in this case (as it was there argued that "adequate provision" was a reference to the standard of facilities the allotment holders had previously enjoyed), the court held that the issue was "more naturally answered by reference to the allotment holders' reasonable needs". Although not powerful authority, this again suggests the setting of a standard (with a margin of appreciation allowed for in the concept of reasonableness) which the proposed alternative arrangements for displaced allotment holders would or would not meet, i.e. an absolute concept. There is nothing in these authorities that compel a definition of "adequate" that is any different from its ordinary meaning.
(iv) Laws LJ accepted that, "on the surface the first question for the decision-maker is simply whether existing provision is adequate" (Paragraph 14.4, his emphasis), by which I understand him to mean that, on the face of the words used in the provision, the question for the decision-maker is whether the provision of pharmaceutical services reaches the appropriate standard as identified by the decision-maker - or not. However, he considered himself driven to import relativity into the term because otherwise "it would be impossible to arrive at any construction of the earlier phrase, 'necessary or desirable', other than one in which the word 'desirable' were otiose". If the provision were inadequate, it would simply be necessary to make it up by granting the application. If it were adequate, the application would have to be refused." (Paragraph 14.3). However, I find the alternative analysis suggested by Lloyds Pharmacy to be compelling, particularly as "desirable" has to be read in the context of "expediency" (see Paragraph 8 above). Had "necessary" been used alone, that may have inhibited decision-makers from granting applications which would have the effect of not merely remedying any identified inadequacy, but also going beyond that with the result that, if the application were granted, there would be provision over and above the standard of adequacy. This is particularly so given the extent to which the decision-maker can take into account future developments, as noted in Lloyds Pharmacy. Similarly, if a deficiency in provision is identified, and there are two competing applications that each would remedy that shortfall, in respect of each it is arguable that it is not "necessary" for the application to be granted (because of the existence of the other application): whereas it may be clear that it is "desirable" or "expedient" to grant one of the two (see the Tunbridge Wells Claim, Paragraphs 103 and following below). Consequently, "desirable" (or "expedient") is given content, allaying the concerns of Laws LJ.
(v) However, I find that the analysis in Lloyds Pharmacy is not only more in line with the ordinary meaning of the wording of the text of the regulation on their face, but it is also more consistent with the internal mechanism of the statutory scheme and more helpful for the decision-maker who has to apply the test. It is, in terms of rationality and logic, the more satisfactory. It was common ground between all of the various parties before me that, ignoring the neighbourhood issue, the "necessary or desirable" test required a two-stage approach (as identified in Lloyds Pharmacy at Paragraph 8, set out at Paragraph 30 above: see also Paragraph 9 above). First, the decision-maker must consider whether the existing provision of pharmaceutical services in the neighbourhood is adequate. Second, if the decision-maker decides that the provision is inadequate, he moves to a second question, i.e. whether the provision of services as proposed on the application is "necessary or desirable" in order to secure adequate provision. Even if the two questions can be brought together as Laws LJ does, the Lloyds Pharmacy analysis more closely follows the scheme of the statutory provisions (which suggest there should be a two-stage process) and, I believe, better focuses the decision-maker on the value judgments he is required to make in applying the test. As Buxton LJ stressed in Lowe (at Paragraph 25) the regulation speaks of simple "adequacy": and it is important that the decision-maker focuses on that concept rather than any test formulated around "whole adequacy", particularly as Laws LJ himself made clear that that phrase "simply refers to a state of affairs in which there is no question but that the existing provision suffices" (Paragraph 14.5(a)). It also avoids possible pitfalls, such as that of Baker in which Sir Louis Blom-Cooper suggested that, where circumstances were such that provision of pharmaceutical services in a neighbourhood were (marginally) adequate, nevertheless a decision-maker might decide that it is "desirable" to grant an application. That would contravene the clear terms of the statute and regulation, which require inadequacy of provision before an application is granted. Further, considering "adequacy" as a relative concept would suggest that the task of the decision-maker is to determine what will maximise the provision of services and providers of services within a neighbourhood - thereby to "increase the adequacy" of such services. That is not the task, which is a simple one: to determine, in all of the circumstances and with a wide margin of appreciation, whether the existing provision of pharmaceutical services in a neighbourhood is adequate or not: and thereafter to consider whether the services proposed in the new application are "necessary or desirable" to meet the identified deficiency.
The "Necessary or Desirable" Test: The Choice Factor
"whether the recipients of pharmaceutical services already have a reasonable choice with regard to -
(i) the pharmaceutical services or directed services provided in the neighbourhood in which the premises named in the application are located, by persons included in a pharmaceutical list, and
(ii) the persons included in a pharmaceutical list from whom such recipients may obtain pharmaceutical services or directed services in the neighbourhood in which the premises named in the application are located;…".
The proper approach to this factor - the "choice factor" - was the main issue between the parties in the Freckleton and Todmorden Claims.
(i) Mr Philip Coppel for the PAC submitted that the "reasonable choice with regard to" pharmaceutical services and the persons included in the pharmaceutical list was different from "reasonable choice of" such services and persons. The latter would require the decision-maker to consider whether there was a reasonable choice of services, and discretely whether there was a reasonable choice of persons providing those services. The wording of the regulation meant that the factor that the decision-maker had to take into account was singular or unitary: he was required to consider simply whether recipients of pharmaceutical services had a reasonable choice, although in that consideration the decision-maker must have regard to services and persons.
(ii) Mr Coppel submitted that, if I acceded to his submission in respect of singularity, where there was only one source of pharmaceutical service provided by one person, there was nevertheless a "choice" for those who sought a service, in that they could obtain that service from the single source or not. If both the singularity submission and this submission were good, then there would only be an absence of choice in circumstances in which there were no pharmaceutical services at all provided in a neighbourhood. Of course, whether any choice were "reasonable" would depend upon all of the circumstances, and if there were only one provider with a single pharmacy, then that might be less than a reasonable choice. However, that would be a value judgment for the decision-maker to make.
The interested parties who appeared all more or less adopted and developed the first ground. Mr Coppel had less support for the second ground.
(i) The Control of Entry Regulations and Retail Pharmacy Services in the UK: A Report of an OFT Market Investigation (OFT609) (March 2003)
(ii) Proposals to Reform and Modernise the NHS (Pharmaceutical Services) Regulations 1992 (Department of Health GR 1909) (August 2003)
(iii) Report of the Advisory Group on the Reform of the NHS (Pharmaceutical Services) Regulations 1992: Advice to the Secretary of State for Health (Department of Health) (January 2004)
(iv) The Final Regulatory Impact and Competition Assessment: NHS (Pharmaceutical Services) Regulations 2005 (Department of Health) (March 2005)
(v) The NHS (Pharmaceutical Services) Regulations 2005: Information for Primary Care Trusts (Department of Health) (August 2005 and February 2007 Revision)
(vi) Review of Progress on Reforms in England to the "Control of Entry" System for NHS Pharmaceutical Contractors: Consultation Document (Department of Health GR 6559) (June 2006) and
(vii) Review of Progress on Reforms in England to the "Control of Entry" System for NHS Pharmaceutical Contractors: Report (Department of Health GR 7334) (November 2006).
On the basis of these documents, Mr Findlay submitted that Regulation 12(2)(b) was introduced to increase choice and competition into the pharmacy market: the November 2006 document (Document (vii) above) indicated that the aim of the reforms was to "promote consumer choice and to harness the benefits of increased competition" (Paragraph 2.7). Those aims can and should be taken into account in two ways. In construing the regulation one should have in mind the purpose of increasing choice and competition, and give Regulation 12(2)(b) a purposive construction. Similarly, decision-makers should have particular regard to "choice" when considering the "necessary or desirable" test.
"Provided that the… authority has regard to all material considerations, it is at liberty (provided it does not lapse into Wednesbury irrationality) to give them whatever weight the… authority thinks fit or no weight at all. The fact that the law regards something as a material consideration… involves no view about the part, if any, which it should play in the decision-making process." (Tesco Stores Limited v Secretary of State for the Environment  1 WLR 759 at page 780, per Lord Hoffmann).
In that sense, Regulation 12 contains no in-built bias in favour of promoting choice.
(i) "pharmaceutical services" referred to in the first line of the paragraph (before the reference to "reasonable choice"): or
(ii) "the pharmaceutical services" and "the persons" as described in subparagraphs (i) and (ii) of Regulation 12(2)(b).
The wording of Regulation 12(2)(b) could have been clearer. Why "or directed services" is omitted from the first line of Regulation 12(2)(b) after "the recipients of pharmaceuticals services…" is something of a mystery, given the restricted meaning of "pharmaceutical services" in the 2005 Regulations and that those words are included after "pharmaceutical services" in subparagraphs (i) and (ii) of the Regulation 12(2)(b). One would have thought that recipients of directed services would be entitled to consideration here, as much as the recipients of essential "pharmaceuticals services". However, that omission does not appear to favour either particular construction of the rest of the regulation set out above.
"whether the recipients of pharmaceutical services already have a reasonable choice [of pharmaceutical services having regard to] (i) the pharmaceutical services or directed services provided in the neighbourhood…and (ii) the persons included in the pharmaceutical list from whom such recipients may obtain pharmaceutical services or directed services in the neighbourhood…."
Therefore, when the decision-maker is considering the "necessary or desirable" test, he must have regard to whether recipients of pharmaceuticals services already have a reasonable choice of such services, taking into account the services already provided in the neighbourhood and the persons who provide them. It is in that sense a unitary factor.
(i) First, the PCT must identify the relevant "neighbourhood". I understand that there may be issues arising from this in the future and, as the extent of "neighbourhood" was not in issue before me in any of the claims, I make no further comment about it.
(ii) Second, because an application can only be granted if the PCT is satisfied that it is necessary or desirable to grant the application in order to secure the adequate provision of pharmaceutical services in that neighbourhood, the PCT can only grant an application if the provision of relevant services is not "adequate". The PCT is bound to make a judgment as to whether the provision of relevant services in the neighbourhood is already adequate, i.e. whether the existing provision at least fulfils an appropriate standard which the decision-maker must identify. In making this judgment:
(a) In considering adequacy, the decision-maker must have regard to all relevant factors, including those listed in Regulation 12(2), which themselves include (i) whether and the extent to which the services proposed in the application are already provided in the neighbourhood, and the accessibility of such services: and (ii) whether and the extent to which the recipients of services have a choice of such services. In respect of choice of services, the decision-maker must have regard to both the services already provided in the neighbourhood and by whom they are provided.
(b) In addition to the factors listed in Regulation 12(2), the decision-maker must have regard to all other relevant factors, including the nature of the neighbourhood and (without speculating) probable future developments e.g. in relation to the neighbourhood and pharmaceutical practice.
(c) The weight given to these relevant factors (whether or not listed in Regulation 12(2)) is a matter for the decision-maker.
(d) The decision-maker will err in law if he fails to take into account any relevant factor (including those listed in Regulation 12(2)), or takes into account any factor that is irrelevant.
(e) Having regard to all relevant factors, the decision-maker must determine whether the existing provision of pharmaceutical services in the relevant neighbourhood is or is not adequate. Where the provision easily satisfies the identified standard of adequacy, the decision-maker may make that clear: and the term "wholly adequate", whilst etymologically dubious, conveys the necessary message. Similarly, "wholly inadequate" where the provision easily fails to satisfy that standard. However, the standard set by Parliament is not that the provision has to be of a standard greater than adequate: and a finding by the decision-maker that the provision is adequate or inadequate is the only requirement. Such a finding is both necessary and sufficient. As the PCT (or, on appeal, the PAC) has been identified by Parliament as the appropriate decision-maker - and the exercise requires the exercise of a qualitative value judgment - the discretion is a wide one, and it is only if the decision-maker strays outside this wide ambit that his decision will be challengeable as irrational or perverse.
(f) If the decision-maker finds the provision adequate, then he must refuse the new application. If he finds the provision inadequate, then he must go on to consider the third issue.
(iii) If the decision-maker finds that the present provision of services is inadequate he must go on to consider the question of how the deficiency can be remedied, i.e. to consider whether the proposal in the application is "necessary or desirable in order to secure adequate provision of pharmaceutical services in the neighbourhood".
(a) Because securing adequate provision is a criterion for the exercise of this discretion, the factors listed in Regulation 12(2) (include the factors of provision/accessibility and choice) are again at least indirectly relevant.
(b) Where the services proposed in the new application would result in an overprovision of services (i.e. services at a higher level than the standard of adequacy identified by the decision-maker) - so that it cannot be said that it is necessary to allow the application in toto to secure merely adequate provision, the decision-maker may still find that acceptance of the application is "desirable" to ensure that the deficiency in services is remedied even at the cost of excess provision. Again, in determining what is necessary or desirable in this context, there is a wide discretion in the decision-maker.
(c) If the decision-maker finds that the proposal in the application is "necessary or desirable in order to secure adequate provision of pharmaceutical services in the neighbourhood" he will allow the application. If he not satisfied that it is "necessary or desirable", he will refuse it.
The Freckleton Claim
(i) The general practitioner for about 82% of the resident population practised out of the medical centre. The only pharmacy in the neighbourhood was on the same site. Those patients therefore had "an excellent provision of pharmaceutical services at the same site and at the same time as they attended the doctor" (Paragraph 22.214.171.124 and 8.2.4).
(ii) Of the 18% who did not obtain their medical services from the health centre, "the patients had a complete adequacy of pharmaceutical services, either by obtaining such services from the health centre in Freckleton or by going to a pharmacy in Kirkham or indeed elsewhere if they did not reside in Kirkham" (Paragraph 8.2.5).
(iii) As the employees not resident in Freckleton would require pharmaceutical services in Freckleton only very rarely or in exceptional emergency circumstances, their needs would be provided by the existing pharmacy in Freckleton health centre.
"Having come to that conclusion, the panel felt that it did not have to make a specific finding as to whether or not there was an adequate choice of pharmaceutical services to hose within the neighbourhood, as suggested by Mr Daly on behalf of the [Claimants].
Choice, one of a number of considerations that the panel has to take into account when assessing whether or not there is an existing adequacy of pharmaceutical service. Having concluded that the vast majority of residents of Freckleton obtained the medical and pharmaceutical services at the new health centre, and that those who did not would obtain them in Kirkham or wherever else they lived, then in all within the proposed neighbourhood had an adequate provision of pharmaceutical service. Even if they lived outside Freckleton, the likelihood is that they would travel by car or public transport and therefore be able to access pharmaceutical services on their way to or from Freckleton, if they did not wish to obtain the service in Freckleton."
"However, the Committee did not consider the pharmacies in Kirkham to provide a reasonable alternative within the neighbourhood. The Committee recognised that the indicators were that the majority of Freckleton had privately owned properties, thereby no real issues of deprivation, and that the information available did not indicate an issue of access for that population when in the vicinity of the proposed site. The Committee accepts that there is a potential gap for this population however insufficient evidence had been adduced in order to render present pharmaceutical services inadequate."
Finally, the PAC concurred with the panel so far as the factory workforce were concerned and:
"In the Committee's view, any potential shortfall in adequacy for these workers was likely to add little weight to the issue as there was no evidence that their purpose for being at [the factory] included accessing pharmaceutical services" (Paragraph 3.7).
"The Committee had regard to Regulation 12(1), the necessary or desirable test, and in considering that test, had regard in particular to Regulation 12(2)…"
"Choice is part of the test of adequacy although not a separate test. Regulation 12(2) of the 2005 Regulations asked whether or not there is a reasonable choice of pharmaceutical services within the neighbourhood proposed. Mr Daly suggested to the panel that if one thought of where one lived (e.g. Freckleton) where there was a pharmacy within the health centre and another pharmacy outside that health centre closed, then the neighbourhood was left with one pharmacy only and within the health centre. Question therefore did that give the reliant population a choice of pharmaceutical services? Mr Daly thought it did not."
Mr Brooker put the case for Co-op (of course, opposing the application), as follows (as recorded in Paragraphs 7.3.9-7.3.10 of the Panel Report):
"… [R]eference is made to choice in the neighbourhood. This is only part of the necessity/desirability criteria that the panel had to consider and he pointed out that the choice must be reasonable not just "choice". In this instance there had been no complaints about the service being offered by his pharmacy, they were offering a full pharmaceutical service, dispensing had increased considerably and the premises where the pharmacy was located could not be faulted. This surely gave everyone reasonable choice. Those who were mobile had other options from which to obtain their pharmaceutical services.
… Mr Brooker suggested that the panel had to look at adequacy as a whole before choice was even considered."
The principal controversial issue was therefore not as to the fact of what services were provided and by whom - that was common ground - but the correct approach to those facts as a matter of law, upon which the parties (i.e. the Claimants and Co-op) were deeply divided.
"Having come to that conclusion, the panel felt that it did not have to make a specific finding as to whether or not there was an adequate choice of pharmaceutical services to those within the neighbourhood, as suggested by Mr Daly on behalf of the [Claimants].
The criticism of this is not that the panel failed to make "a specific finding" in relation to whether there was an adequate choice of services - there is no obligation for such a finding to be made, but only for regard to be had as to whether there is a reasonable choice of services. However, this passage reveals that their entire approach to choice was wrong. They effectively set out the correct approach in the next subparagraph of their report:
"Choice, one of a number of considerations that the panel has to take into account when assessing whether or not there is an existing adequacy of pharmaceutical service…"
but, unfortunately, they patently did not take this approach. Having assessed the provision of services as being very good, they appear to have considered it unnecessary to take choice into account at all, and certainly appear not in fact to have taken it into account. That appears from the positioning of the reference to choice (after their conclusion that existing provision was "totally adequate"): from Paragraph 8.4: and from what immediately follows the reference to choice. In the succeeding passage, there is no reference to choice except possibly a reference to those who worked in (but lived outside) Freckleton being able to access pharmaceutical services on their way to and from work, "if they did not wish to obtain services in Freckleton". However, insofar as that is a reference to choice at all, then (i) it is faint, and (ii) it is somewhat undermined by the eventual PAC decision letter which indicated that they did not consider pharmacies in Kirkham to be a reasonable alternative within the neighbourhood (Paragraph 3.7) and they accepted there was a potential shortfall of adequacy in relation to the factory workers (Paragraph 3.8). Whether they accepted the submission of Mr Brooker or not, in my judgment the panel patently erred in their approach to the choice factor.
The Todmorden Claim
"5.11 The PCT's decision letter stated that there was no indication that existing pharmacies are unable to meet demand for services. That 'it is possible they would struggle should there be a major increase in demand for services' appeared to be a matter for speculation. The [PAC] was aware of the applicant's suggestion on appeal, that transfer of dispensing patients from doctors dispensing list following the [PAC] decision that nearby Cornholme and Walsden are no longer controlled localities, and regeneration in Todmorden will increase demand for pharmaceutical services. The applicant has referred to views said to be expressed by Todmorden Town Council to the PCT, that pharmaceutical services are already 'stretched'. The [PAC] having regard to the above statements was provided with no information to demonstrate that existing pharmacies are unable to meet present demand or would be unable to cope with increased demand for services.
5.12 The [PAC] noted a central issue of the appeal was the perceived lack of choice of pharmaceutical services and service provider, given that both existing pharmacies in the neighbourhood are operated by [Alliance]. Whilst the PCT's decision letter had suggested there is a 'question of choice' it was also acknowledged that both pharmacies are under separate management and made separate decisions. The [PAC] was mindful that 'reasonable choice' does not override the necessary or desirable test of securing adequacy. The Regulations do not indicate that choice cannot be secured where pharmacies are operated by the same company. Should there be any reason to believe that there was any inadequacy of services linked to both existing pharmacies being owned by the same company, there could potentially be grounds for granting the application. This was not the case here. The [PAC] had no reason to believe that the population do not have a reasonable choice of service and service provider available to them.
5.13 … The [PAC] had no reason to believe that because one pharmacy provides services that the other may not, there was a need for additional services to secure adequacy."
"The [PAC] having regard to the above statements was provided with no information to demonstrate that existing pharmacies are unable to meet present demand or would be unable to cope with increased demand for services" (emphasis added).
There was evidence of concerns as to the capacity of the two pharmacies to cope with the additional demand that would arise from the rural areas decision, e.g. Todmorden Town Council are recorded as saying that "the pharmacy in Todmorden is already stretched and would have difficulty in providing a satisfactory service to more customers" (7 September 2006 PAC decision letter, relating to the rural areas issue). However, in Paragraph 5.11 the PAC were clearly not saying there was no evidence to that effect - they were saying that the evidence to that effect had not, in their view, demonstrated an inability to cope with present or foreseen increased demand. That was a decision open to the PAC to make on the evidence before them. The fact that they did not state that matters relating to potential future demand were as firm as they might have been or the Claimants' believed them to be (see, e.g., Paragraph 79(a) and (c) of their Skeleton Argument) does not significantly detract from this. This ground has no significant merit.
"In finding that it had 'no' reason to find that the population did not have a reasonable choice of service and service provider when in fact there was only one service provider with two premises/contracts providing services to the neighbourhood the [PAC] failed to deal with the issue of choice as introduced by the 2005 Regulations or at all."
(i) The fact that a pharmaceutical list lists each premises used as a pharmacy - so that the Alliance pharmacies in Rose Street and Bridge Street, Todmorden, have separate entries - and they each have a separate contract with the PCT as they are required to do under the Regulations. However, as I have explained (Paragraph 14 above), although each set of premises from which the business is to be run has to be the subject of a separate application, the list is a list if the providers of pharmaceutical providers. Separate contracts, separate premises and even separate entries on the list does not mean that, in Regulation 12, "person" can be equated to "pharmacy" or "premises".
(ii) The primary objective of the statutory scheme is to ensure that there is adequate provision of pharmaceutical services in any neighbourhood, rather than to require that in every neighbourhood there should be more than one provider. That, with respect, is obviously correct. In particular, the scheme does not require there to be more than one provider in any neighbourhood: it requires a decision-maker to have regard to whether there is a reasonable choice of pharmaceutical services in that neighbourhood, which includes having regard to whether there is a reasonable choice of provider as I have set out above (Paragraphs 43 and following). Miss Lang prayed in aid the NHS (Pharmaceutical Services) Regulations 2005: Information for PCTs (February 2007 Revision) which says, at Paragraph 3.75 under the heading, "The extent to which there is a reasonable choice of providers in the neighbourhood which may be improved by additional providers":
"[PCTs] should assess the extent to which there is a reasonable choice of providers of services in a neighbourhood. For example, a neighbourhood with one provider but a high demand for diverse or more accessible services which are not being met may benefit from an additional provider of services who can cater for these needs. This may be an existing provider seeking to expand his business. Alternatively, it could be a brand new provider where an existing provider is unable to expand his current range of services to meet these needs."
She submitted that this passage envisages that a "reasonable choice" of providers may be achieved by allowing an existing provider to expand his business. That may be a suggestion in this passage: but, as she submitted in relation to Mr Findlay's attempts to introduce all sorts of extra-statutory material, the extent to which I can take this into account is limited and is limited to the vanishingly small if, as I consider, the statutory provisions are unambiguous.
(iii) Miss Lang submitted that "choice" is qualified by the word "reasonable": and therefore even where there is only one provider in multiple pharmacies it is open to a decision-maker to find that the choice of provider is not reasonable. However, as I have found (see Paragraphs 57-58 above), "reasonable choice" refers to "pharmaceutical services" and not directly to "persons" in Regulation 12(2)(b)(ii).
"… The [PAC] had no reason to believe that because one pharmacy provides services that the other may not, there was a need for additional services to secure adequacy."
That shows that they took into account the fact that, in relation to some services there was effectively no choice, and nevertheless decided that the provision of those services in the neighbourhood was adequate. I cannot say they erred in law here.
"The [PAC] had no reason to believe that the population do not have a reasonable choice of service and service provider available to them."
I accept that this is not happily worded. Even if, as I consider, this meant that the PAC did not consider there was sufficient evidence before them to persuade them that the recipients of pharmaceutical services in the relevant neighbourhood "do not have a reasonable choice of service and service provider available to them", this is inaccurate. They have no choice of service in relation to some directed services, and no choice of provider at all. However, that sentence has to be looked at in context. I am satisfied that, looking at the decision letter (and particularly Paragraphs 5.11-5.13) as a whole, despite the terms of the sentence to which Mr Findlay took exception, in substance the PAC adopted the correct approach to the choice factor. Unhappily as this sentence is put when taken out of context, the decision letter has to be read as a whole: and I do not consider that this single sentence betrays any substantive misunderstanding on their part.
The Tunbridge Wells Claim
"The [PAC] noted [Assura's] claim that their application had offered to provide the same opening hours on Saturday as [Canterbury] albeit the former's were listed as 'proposed hours'. It is a fact that the core contractual hours offered by [Canterbury] included Saturday mornings. The [PAC] noted the PCT's undisputed reference to the PCT's [PNA], which it was said had indicated concern over 'the relative lack of Saturday opening hours'. The [PAC] considered that the opening hours of [Canterbury] should be preferred as to alter these would require permission from the PCT whereas non-core hours only required 90 days' notice of alteration. Their application would meet a gap identified in the PNA…" (emphasis added)
"The Committee [this is a reference to the PCT, as it is in the section dealing with the PCT decision], aware that the PNA and the PCT had identified the relative lack of Saturday opening hours as a matter of concern, agreed that the [Canterbury] application be approved and the [Assura] application be refused."
This was a direct quotation from the penultimate paragraph of the PCT decision letter of 4 October 2006.
"The sole ground upon which the Claimant asks this Court to quash the decision is that the [PAC's] decision was based upon a mistake as to existing fact, which gave rise to unfairness. The mistake made was that the [PAC] wrongly assumed that a Pharmaceutical Needs Assessment ("PNA") had indicated concern over the relative lack of Saturday opening hours. It had not done so. That mistake led to unfairness because a material reason given by the [PAC] in refusing the Claimants' application and allowing Canterbury's was that Canterbury's application would more certainly meet the gap as to Saturday opening hours allegedly identified in the PNA"
"63. In our view, [R (A) v Criminal Compensation Board]  2 AC 330 points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between 'ignorance of fact' and 'unfairness' as grounds of review. However, we doubt if there is any real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that 'objectively' there was unfairness. On analysis, the 'unfairness' arose from the combination of five factors: (i) an erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); (ii) the fact was 'established', in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; (iii) the claimant could not fairly be held responsible for the error; (iv) although there was no duty on the Board itself, or the police, to do the claimant's work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result; (v) the mistaken impression played a material part in the reasoning.
64. If that is the correct analysis, then it provides a convincing explanation of the cases where decisions have been set aside on grounds of mistake of fact. Although planning enquiries are also adversarial, the planning authority has a public interest, shared with the Secretary of State through his inspector, in ensuring that development control is carried out on the correct factual basis… The same thinking can be applied to asylum cases… [The Secretary of State] has a shared interest with the appellant and the tribunal in ensuring that decisions are reached on the best information. It is in the interests of all parties that decisions should be made on the best available information…
66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without laying down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."
(i) That there was a mistake of fact. Those opposing the challenge (the PAC and Canterbury) submitted that there was no such mistake, because the PAC merely referred to "the PCT's undisputed reference to the PCT's [PNA], which it was said had indicated concern over 'the relative lack of Saturday opening hours'". That was a true reference, and the PNA, of which the PCT clearly had sight, was never before the PAC. Therefore, it was submitted that the PAC properly took into account the evidence before it. However, I do not consider that that will do. Leaving aside any obligation on the PAC to obtain relevant documents (see Paragraph 14 above), on a proper analysis I accept Mr Findlay's submission that the PNA did not suggest that there was a gap in the provision of pharmaceutical services so far as Saturday hours was concerned. Looking at the PNA as a whole, this is relatively clear. The reference under the heading "Out of Hours" to "very limited access" to getting a prescription dispensed beyond the working day or Sundays is not a reference to Saturdays at all: this is apparent from the table which sets out "Apparent gaps in provision" which identifies "a clear need" but refers to current provision as "Four pharmacies only across the PCT". Reference back to the Service table shows that this is almost certainly a reference to pharmacies with the "intention to open weekdays after 6.30" (four in number), and not those with an "intention to open on Sat" (a total of 22 in the PCT area and nine in Tunbridge Wells, eight all day and one mornings only). I accept that the PNA did not disclose any apparent shortfall in provision on Saturdays: and this was misunderstood by the PCT. Although there was other evidence before the PCT as to the general desirability of Saturday opening (e.g. see Paragraphs 4.63-4.65 of the 22 January 2007 decision letter), the PAC nevertheless adopted this mistake in relation to the perceived shortfall of provision in services on Saturdays. The fact that they did so not on the basis of seeing the actual PNA but only on the reportage of the PCT does not seem to me to be in point.
(ii) That the mistaken fact or evidence has been 'established', in the sense that it is objectively verifiable. I do not consider that this is entirely straightforward for the Claimants, but for the purposes of the claim I accept that the PNA is sufficiently clear and unambiguous to make the mistake patent.
(iii) That the mistake played a material part in the tribunal's reasoning. Although there was other evidence suggesting that Saturday opening was beneficial in any event, I accept that the identification of a provision gap played a material part in the PAC's thinking. The fact that the Canterbury proposal had Saturday hours in the core hours appears to have been the advantage of their application over that of the Claimants which did swing (or at least may have swung) the contest between the two applications their way. That was based on the (unfortunately mistaken) premise that a perceived gap in provision for Saturdays had been identified in the PNA. On that basis, that mistake was material to the PAC's decision.
"The Committee, aware that the PNA and the PCT had identified the relative lack of Saturday opening hours as a matter of concern, agreed that the [Canterbury] application be approved and that the [Assura] application be refused."
The Claimants were therefore aware from that decision letter that the PNA had been relied upon by the PCT in relation to the perceived gap in Saturday provision. They appealed on 12 October, and in their grounds of appeal identified the Saturday hours issue as the apparently determinative one so far as the PCT were concerned.
(i) In Claim No CO/597/2007 (the Freckleton Claim), I allow the claim, quash the decision of the PAC dated 30 November 2006 and remit the matter to the PAC for decision.
(ii) In Claim No CO/2242/2007 (the Todmorden Claim), I dismiss the claim.
(iii) In Claim No CO/2189/2007 (the Tunbridge Wells Claim), I dismiss the claim.
I shall hear submissions on the question of costs.
His Honour Judge Gary Hickinbottom
21 February 2008