Community Pharmacies (UK) Ltd, R (On the Application Of) v The National Health Service Litigation Authority

Part 7 of the National Health Service Act 2006 provides for the provision of pharmaceutical services. Sections 126(1) and (3) provide that the National Health Service Commissioning Board must make arrangements for the provision to persons in England of proper and sufficient drugs and medicines and listed appliances ordered for those persons by a medical practitioner in pursuance of his functions in the National Health Service.

The scheme under which these arrangements are made (the arrangements themselves being effected by the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 (SI 2013/349: “the 2013 Regulations”)) is further provided for by primary legislation. Section 128A of the National Health Service Act 2006 provides that each Health and Wellbeing Board (“HWB”) must assess the need for pharmaceutical services in its area and publish a statement of its assessment and any revision of it. Section 129, headed “Regulations as to Pharmaceutical Services” provides, so far as material to the present case:-

“(1)

Regulations must provide for securing that arrangements made by the board under Section 126 will (a) enable persons for whom drugs, medicines or appliances… to receive them from persons with whom such arrangements have been made and (b) ensure the provision of service… by persons with whom such arrangements have been made…

(2)

The Regulations must include provision – …

… (b) that an application to the Board for inclusion in a pharmaceutical list must be made in the prescribed manner and must state –

(i)

the services which the applicant will undertake to provide and, if they consist of or include the supply of appliances, which appliances he will undertake to supply, and

(ii)

the premises from which he will undertake to provide those services,

(c)

that, except in prescribed cases… (i) an application for inclusion in a pharmaceutical list by a person not already included, and (ii) an application by a person already included in a pharmaceutical list for inclusion also in respect of services or premises other than those already listed in relation to him may be granted only if the board is satisfied as mentioned in sub-section (2A)…

(2A) The board is satisfied as mentioned in this sub-section if, having regard to the needs statement for the relevant area and to any matters prescribed by the Secretary of State in the Regulations, it is satisfied that to grant the application would -

(a)

meet a need in that area for the services or some of the services specified in the application, or

(b)

secure improvements, or better access, to pharmaceutical services in that area.”

The broad sense of these provisions is that an application to open a new pharmacy in any particular area must be shown, by reference to a patient needs’ assessment, to meet a need for pharmaceutical services or secure improvements or better access to those services already provided. Such an application is known as “a routine application”.

Section 129(2)(c) recognises that there may be exceptional cases for which provision will be made by Regulations: “exceptional applications”.

The 2013 Regulations provide by Regulation 24 that the relocation of pharmacies which “do not result in significant change to pharmaceutical provision” is one such exceptional case. Regulation 24 provides by paragraph 1:

“Section 129(2A) of the 2006 Act (Regulations as to Pharmaceutical Services) does not apply to an application for a person already included in a pharmaceutical list to relocate to different premises in the area of the relevant HWB (HWB1) if –

(a)

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

(b)

in the opinion of the NHSCB, granting the application would not result in a significant change to the arrangements which are in place for the provision of local pharmaceutical services or of pharmaceutical services other than those provided by a person on a dispensing doctor list –

(i)

in any part of the area of HWB1, or

(ii)

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

(c)

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

(d)

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

(e)

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

In Derby, there is a city centre shopping centre known as the Intu. Within it, Superdrug operates a pharmacy. The Claimant applied to take over ownership of that pharmacy – that in itself has not been controversial – and to relocate it – that has been. It wished to move the pharmacy so as to operate it in a large surgery at 11 Wilson Street, which is outside the city centre, nearly 600 metres from Superdrug’s premises in the Intu. The relocation required the approval of the NHSCB. It was refused. The Claimant appealed to the Secretary of State as it was entitled to do. The Secretary of State has provided for an appeal structure under which appeals to him are brought before the Family Health Service Appeal Unit of the NHSLA (the “FHSAU”). The Regulations provide for some flexibility in procedure: the appeal panel convened by the FHSAU in the present case decided to hold an oral hearing. It was chaired by Linda Lee (a former president of the Law Society) and had as its other two members Fiona Castle, a qualified pharmacist, and Paul Chapman, a lay person. It heard evidence and took representations from those with an interest in the decision. For reasons stated in a decision dated 1^st May 2015, the Committee decided it was not satisfied that the location was not significantly less accessible, and therefore Regulation 24(1)(a) was not satisfied.

It considered (paragraph 9.27) that it had to seek to identify the patient groups which potentially would be affected by the relocation, based upon the information provided by the parties. The Claimant identified two patient groups: shoppers at the Intu, and workers at the Intu, and said that all other patient groups were merely sub-sets of those two main groups (paragraph 9.28.1.3). The Committee thought it likeliest that the larger group accessing pharmaceutical services would be shoppers. It was accepted, as fact, that they would have access to the Intu on foot, by public transport or by car, though there was no agreement as to the proportions using any particular method of travel (paragraph 9.30).

Interested parties raised the suggestion that disabled patients would access certain services at Intu, and given the demographic of Superdrug customers (tending to be younger, and more likely to be women than other outlets) suggested it was likely that there would be a number of young women, aged over 18, seeking contraceptive advice.

In the light of these submissions, at paragraph 9.37 the Committee – adopting the approach it had set out at 9.27 - identified the patient groups of those attending as comprising workers at the Intu, shoppers travelling to the Intu by foot, shoppers travelling to the Intu by public transport, shoppers travelling to the Intu by car, disabled patients, women aged 18 and over seeking EHC (emergency hormonal contraception), and patients seeking pharmaceutical services other than EHC. It then examined each of those seven categories in turn.

From the decision it is clear that particular features of the new location were that it was outside the city centre, and the approach to it was not under cover, such that it was not protected against inclement weather: this contrasted with the approach to Superdrug. The routes from Intu to Wilson Street involved travelling a distance of some 590 metres, up an incline. A principal route ran past Milestone House, which attracted numbers of those seeking shelter for the night, who might be suffering from drug and alcohol problems and might indulge in anti-social behaviour and begging. There was dedicated car parking at the surgery; those travelling by bus on “A routes” could get off the bus on their way to the bus station in order to access that surgery, before walking into Intu, whereas those on “B” and “C” routes might have more difficulty.

The Committee thought it unlikely that the disabled patient group was significant in number, though it was also unlikely that it consisted only of one as the Claimant suggested, and for those with mobility difficulties the incline would render the new site less accessible.

Taking these matters into account, against what it complained was a relative paucity of evidence, the Committee expressed its overall assessment in six paragraphs central to its decision as follows:

“9.55

The Committee was left in some difficulty because, while it had some information about some patient groups, the information available to the Committee clearly referenced the existence of other groups whose access whose access the Committee was not able to assess.

9.56

The Committee had no evidence regarding the accessibility for users of public transport

9.57

The Committee did not have evidence other than anecdotal regarding those who currently accessed the service at the current location and had a disability

9.58

Given the unusual nature of the patient groups, in that the largest identifiable groups were identified by location, that is groups such as shoppers at the Intu and workers at the Intu who would have been travelling to the Intu in any event. Some of those groups such as workers at the Intu could be reasonably assumed to have a starting point at the current location. (sic).

9.59

The Committee was able to draw limited conclusions (set out above) regarding access for the identified patient groups but found it difficult to fully assess the significance of the accessibility for the group it identified as being most likely to be affected by the relocation, that is women aged 18 and seeking the EHC service. The Applicant had not provided any information regarding the numbers using this service or any of the other non-dispensing services and the very low numbers of prescriptions dispensed meant this could have been a large proportion of users of the service affected but the Committee had no evidence either way.

9.60

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

9.61

The Committee was therefore of the view that condition (a) is not met.”

In four respects it is said the Committee made legal errors. The first, which forms Ground 1 of the claim, is that in referring to patients “accessing the EHC service at the current site” the Committee erred in law because although Superdrug, as a pharmacy, provided EHC services to privately paying patients these were not pharmaceutical services within the meaning of Regulation 24(1)(a) of the 2013 Regulations because they were not services provided through the NHS. The 2013 Regulations relate only to National Health Service arrangements. It was therefore not permissible for the Committee to base its decision on whether women accessing EHC would find the new location of the proposed pharmacy significantly less accessible than the present.

Ground 2 was that the Committee erred in considering the patient groups it did.

Ground 3 was that the Committee failed to ask whether the change of location was significantly less accessible for those shoppers travelling into Intu by public transport, nor did it ask that question in respect of disabled patients.

Ground 4 was that the Committee failed to apply a balancing test between different patient groups: it should have but did not reach a balanced decision about the effect of the change of location on different patient groups.

Mr Lock QC for the Claimant, began his submissions by submitting that the Committee, in recognising the patient groups as set out at paragraph 9.37 (see paragraph 9 above) had misinterpreted the meaning of “patient group” within Regulation 24(1)(a) of the 2013 Regulations. That expression is undefined in the 2013 Regulations.

In the written statement of facts and grounds in support of the application for judicial review he had argued that opponents of permission for relocation cynically defined “patient group” by reference to a mooted characteristic which had little if anything to do with their status as patients, then asserted that there was no evidence as to how the supposed relocation would affect those patient groups, and then invited the Committee to reject the appeal on the basis the Committee could not be satisfied that the supposed group of patients would not find the location of the new premises significantly less accessible. He argued that it could not have been the intention of Parliament to allow potentially for the sub-division of patients using an NHS pharmacy into an almost infinite number of patient groups and then to require an applicant for permission to relocate an NHS community pharmacy to demonstrate the effect of the proposed relocation on every one of those groups before the application could lawfully be approved. From this starting point, he had sought to define “patient group” by reference to the definition of the phrase in the “Patient Group Directions Health Service Circular 2000/026”. This explained that a Patient Group Direction was a direction which applied to a group of patients where the clinical condition or situation of the patients was defined within an instrument. One such instrument is The Human Medicines Regulations2012, Regulation 213 of which refers to Patient Group Directions relating to the sale or supply or administration to persons generally. Schedule 16 to these Regulations contains further provisions about Patient Group Directions, which state that the patient group must be defined by reference to “clinical criteria under which a person is to be eligible for treatment”. Mr Lock QC argued that the same approach should be adopted to the meaning of the same words within Regulation 24(1)(a) of the 2013 Regulations which are in issue in this case. “Patient Groups” therefore meant “defined groups of users of the pharmacy who have one or more common clinical characteristics”.

The argument that “Patient Group”, where that expression was used in the context of considering whether relocation of a pharmacy was permissible under the 2013 Regulations, should be defined by reference to the use of the same expression in different Regulations, dealing with different issues, has obvious difficulties in its path: but in the event was not pursued before me except as a fall-back argument, even though it was the principal ground of challenge in the written grounds. Rather, Mr Lock QC now took a different approach to the meaning. He argued for the first time that the meaning of “Patient Group” was to be determined by its apparent meaning elsewhere within the 2013 Regulations.

He did so by reference to principles of statutory construction: first, that the 2013 Regulations had to be considered as a whole, and the meaning of words thus understood by reference to the whole and not by looking at a particular regulation in isolation; second, that where the draftsman used a single expression on multiple occasions in the same instrument, it must bear the same meaning on each occasion unless it was made clear that a different meaning was intended; third, that where the meaning of an expression in a statutory instrument is clear in one usage of it, the same meaning applies elsewhere unless it is made clear that a different meaning is intended; and fourth, where a general term is used in combination with some specific terms the eiusdem generis principle applies to assist in finding the meaning of the general term. These four propositions were not in serious contention before me, and were supported by reference to Bennionon Statutory Construction (6^th Edition).

The starting point for this is understanding the particular meaning given in the 2013 Regulations elsewhere than in Regulation 24(1)(a), by reference to which it is said that the meaning of “patient group” is set in stone for the purposes of that Regulation 24 too.

In the 2013 Regulations, Schedule 2, paragraph 19(1) provides that

“As soon as is practicable (having regard to its functions under Part 2) the NHS CB must give notice of a notifiable application to - … (e) any Local Healthwatch organisation for the area of the relevant HWB and any other patient consumer, or community group in that area which, in the opinion of the NHSB has a significant interest in the outcome of the application” (emphasis added).

The expression “any other patient, consumer or community group” uses the word “group” in relation to the word “patient”. Applying the eiusdem generis principle, Mr Lock argues that the patient group referred to must have the features applicable to a local health watch organisation. The same expression also appears in Regulation 52(1)(e). Mr Lock thus submits that the term “patient group” is used repeatedly in the Regulations within the composite expression “patient, consumer or community group”. The genus indicated by this composite praise comprehends “patient group”, “consumer group” and “community group”. Each is an organised group of individuals joining together for a common community or consumer purpose. There is a clear purpose in identifying a patient group of this type for the purposes of paragraph 19 of Schedule 2, for the statutory purpose of that provision is to provide for notice of an application to which the Schedule applies to be given to the group, to allow the group to make a considered response to it.

The nub of the argument is contained in paragraph 40 of Mr Lock’s skeleton argument, where he submits that where a draftsman has used a term such as “patient group” on multiple occasions in the 2013 Regulations the Court should assume that the term has the same meaning throughout those Regulations. Applying this meaning gives better sense to the term as it appears in Regulation 24 than that adopted by the Committee, for it enables the patient groups themselves, as organised groups, to be notified, and each to make a decision whether it wishes to provide evidence about the impact of the proposed relocation on members of that group. It would follow that if the NHSCB had not identified any patient groups which it considered to have a significant interest in the outcome of the application, that would be a final decision for the purposes of Regulation 24(1)(a), unless another party were to lead evidence of an identifiable patient group that should have been served with notice and so have been given a chance to have its say: there would be no group in respect of whom it could be said the relocated pharmacy would be significantly less accessible.

Mr Parishil Patel, for the Defendant, pointed out that the meaning now advanced of “patient group” was the fifth formulation to be advanced by the Claimant. Initially, when the application was made to the NHSCB, the Claimant identified the patient groups as “shoppers”, “workers”, “residents” and “patients registered with local surgeries”. The submission made to the Committee itself by the Claimant’s professional (non-lawyer) representative was, as noted above, that the relevant patient groups consisted of shoppers and workers. In pre-action correspondence, anticipating a challenge to the decision, “patient groups” were defined as “individuals who have one or more characteristics which is or are referable to their status as an NHS patient”; and I have already pointed out that in the Statement of Facts and Grounds it was “a defined group of users of a pharmacy who have one or more common clinical characteristics”, which is now relegated to an alternative argument. He points out – correctly – that the Claimant was not granted permission to advance this new fifth ground; and in any event suggests that the NHSCB might wish to file evidence as to the practicalities of this most recent attempt at definition, but has not been able to do so owing to the very late stage at which it surfaced.

A further point appears to me, to which I shall return at the end of this judgment: the Committee are said to have erred in law, yet if they did so it was by adopting the very error of law which the Claimant was inviting it to make. In principle, there is a substantial argument that a party should not be allowed to have several attempts at setting out the law, in very different terms, on sequential occasions. If there is a proper case to be put, the whole of it should be put at one and the same time, and not to do so is liable to constitute abuse: this is particularly so where the Claimant is now saying that its own case as put to the first instance decision maker was erroneous in law, and could not properly be accepted. I invited the parties to provide further submissions on this point.

I do not accept the argument Mr Lock puts forward. Where it is in error is firstly in assuming that because an expression must be read eiusdem generis in one context, that defines its meaning for other contexts in which there is no requirement to read the same expression “eiusdem generis” with any other words. The word “group” is a common English word, capable of applicability in a wide range of circumstances. Where it is qualified by the adjectival use of “patient” then the group has plainly to consist of those who are identified as “patients” in some relevant respect, but otherwise the breadth of the word “group” remains. The purpose of the eiusdem generis principle is to limit what would otherwise be recognised as the generality of the wording in a particular context. It cannot be used to define the meaning of the expression where there are no words which suggest that the meaning should be limited in that way. Consider the example of the expression: “cats, dogs and other animals”. In this expression, “other animals” has to be understood in the context of “cats” and “dogs”. “Other animals” will thus be domestic animals. Remove the words “cats, dogs and other” and the word is simply “animals”. Absent specific context, there would be no warrant in any statute or instrument which referred to the composite expression in one place, and the unqualified word “animals” in another, for reading the latter as limited to domestic animals. It would retain the generality of meaning which it was the very purpose of the word “other” to restrict by reference to specific examples in the list of which it formed part.

In short, I am asked to apply a principle of construction in a manner for which it was never designed. I am invited to infer that a limitation provided in one context applies, even where the words of limitation are not used, elsewhere in the statute. Far from persuading me that this would mean that the general words, restricted by the specificity of its precursors in the phrase giving rise to the eiusdem generis construction should apply in all cases in which in the statute or instrument the unadorned general word is used without qualification, it rather persuades me to the opposite conclusion: it suggests, if anything, that the word has a broad meaning which, unless qualified, is that to be adopted.

In short, the expressions are different, the contexts are different, and the limitation on the meaning of “patient groups” in one context cannot simply be read across to the other.

I see no alternative to attempting to construe these imprecise words in their context. I accept that this is not only their immediate context – that of Regulation 24(1)(a) - but that of the 2013 Regulations more generally, and more broadly still the statutory scheme of which they form part. I do not think that the fall-back argument helps Mr. Lock’s case here, either – for the principle of construction is not that one statute should be construed by reference to another, where the purposes of the two are different: there is no particular reason to think that the draftsman intended the two to be read together as part of a specific code.

Adopting the approach I have set out, the word “patient groups” does not refer to groups acting as such: going to a pharmacist for a prescription is not in itself a group activity. Regulation 24(1)(a) is concerned with the question of accessibility. As was pointed out at one stage for the Claimant, a group defined by their being red-haired would not be a relevant group for the purposes of determining access, since colour of hair has nothing relevant to offer in relation to that question. So, too, is this true of the issue of the nature of their clinical conditions, which are in general irrelevant to accessibility – the only exception might be those conditions which may of their very nature have a real relevance in relation to assessing the accessibility of premises. Those, for instance, who suffer from a COPD, or spinal disc herniation, or palsy may be affected by distance, incline, unevenness of ground, or the need to negotiate stairs rather than gentle slopes: but to group those who require analgesia, or anti-depressants, or steroids, or are in dental pain as separate groups would make no sense where the purpose of grouping is to aid an assessment of accessibility.

If, then, in context, the purpose of grouping is to facilitate a decision as to the accessibility of the new premises, the starting point is considering what makes a relocated pharmacy less easy to go to physically, mentally or socially, and “groups” must have their identities determined with that in mind. The 2013 Regulations are intended to apply across the country. In some parts of England there will be well defined patient organisations – every surgery, for instance, should have a patient group attached to it – but the number and nature of these groups will inevitably vary, and in many areas may hardly exist. The same need remains in those areas, however, to ensure that if pharmacy premises are relocated they are, in practical terms, not significantly less easy to go to for those who had been in the habit of going to the pharmacy at the site it occupied before relocation.

So long as the NHSCB, or on appeal the FHSAU, bears in mind that the purpose of identifying the groups is to make a broad assessment of the question of accessibility, and that therefore to identify too many groups which are too small in number to assist with that process would risk over-focussing and losing sight of the whole broad picture, and provided the Board or Committee takes a practical and pragmatic view of the groupings that might assist it to a conclusion, by reference to which it may analyse the available evidence, it will not go far wrong.

The guidance offered by the Department of Health itself, illustrated by a number of cases decided by committees, suggests that “patient group” reflects the requirement for HWBs when developing their pharmaceutical needs assessments to “have regard to the demography of their area and different needs of people in their area who share a protected characteristic, for example, a large travellers’ site, a large sheltered housing complex…[and] those other characteristics such as age, sex and disability that form the basis of the public sector equality duty under the Equality Act 2010.” I regret that I do not consider this guidance helpful, because the concept of protected characteristics – of which it must be remembered there are nine in the Equality Act, most if not all of which have very little to say about the accessibility of one location when compared to another – is not obviously related to accessibility, even if the Act is a starting point for deciding issues of equal treatment.

However, the guidance note issued by the NHSLA more helpfully suggests that patient groups might be identified in relation to (a) local GP practices; (b) methods of travel (on foot, by car or public transport); (c) types of pharmaceutical services assessed (dispensing/collection and delivery); (d) the geographic location of the patient group’s starting point of the journey to the pharmacy; (e) demography; (f) care homes and/or (g) areas of deprivation. Broadly, this accords with what I regard as the correct approach in law, which is to see the decision in the context of assessing accessibility for existing users of a pharmacy due for relocation, and doing so not by posing a general question – are the new premises significantly less accessible to those who use the existing pharmacy? – which would invite an assessment of the overall picture, but to assess accessibility group by group. This has the implication that if any one group is significantly affected adversely the statutory test will not be met: and this gives another reason, in my view, for seeing “patient groups” as a tool for assessment of accessibility, the boundaries of which which need to be drawn broadly. Mr. Patel’s argument that an application for relocation is an “exceptional” one, whereas “routine” applications determine the broad needs of the community as a whole, is relevant here since what is in question is the degree of disturbance to existing arrangements, viewed by reference to accessibility for those who currently make use of the premises which are potentially to be moved.

Next, I bear in mind what the documents have told me about the intuitive response of those several persons who have considered the meaning of “patient groups” before this case: it has been entirely in line with that just articulated. The Claimant itself interpreted it at first in very much the way I have approached it; its professional representatives before the Committee did the same; that coincides with the NHSLA’s own guidance, which in turn echoes the cases to which the NHSLA refers in its guidelines. There has been no discordant note until this appeal. It is not without significance that alternative approaches are opaque – Mr Lock QC frankly acknowledged that the reason for such a late development of the fifth definition to surface in the Claimant’s case was that it occurred to him only at the stage of refining his skeleton argument for the hearing before me. For the reasons I have given, his latest thoughts are not his best: they do not accord with principle. Nor do I consider that his alternative argument can succeed, since it seeks to transplant an expression used in different regulations in a different context to a very specific context of Regulation 24. In any event, if it was necessary to do so, I would have interpreted Regulation 24 as requiring a different construction of “patient group” from that used elsewhere in the 2013 or other Regulations even if I had been satisfied that the phrase “patient groups” as such was used in a different sense elsewhere in the Regulations.

Finally, it makes sense in the broader context of arranging the accessibility of pharmaceutical services so as to meet the assessed needs of those in the area that, once appropriate provision is established, a proposed change of location of any pharmacy whose services are part of that provision should be scrutinised to ensure it does not significantly diminish the accessibility of those services for those whose needs have been assessed. Accessibility will vary from area to area; it is rational to assess this by reference to particular groups, whose identity is always likely to depend upon particular local circumstances.

The parties were agreed that it is for the proponent of a move from one pharmacy premises to another to satisfy the Committee that the pharmacy proposed at the new location will not be significantly less accessible. This is reinforced by the consideration that the proponent is likely to be in the best position to identify those groups who are accustomed to using the existing pharmacy, and therefore to be able to produce relevant evidence to show that there is no significant loss of accessibility for the members of those groups.

In the present case, the principal groupings were those in respect of shoppers and workers. Access for them to the relocated premises was always likely to involve consideration of the main ways in which they had access to the existing pharmacy. A sub-division of those groups into smaller groups defined by car, train, or bus transport was obvious, could easily have been anticipated, and a decision based in part upon consideration of those groups involved no error of substantive law or procedure.

The veiled suggestion is made to me that the groups identified as disabled and women of 18 (and over) seeking EHC services were sprung on the Claimant, and that since it did not anticipate those groups, the evidence there might have been to show that they would be unaffected – or indeed, did not on the particular facts of the case even constitute a group - was unavailable, yet its absence was a ground of decision. There is however no challenge based on procedural irregularity. I would merely observe that in subsequent cases the FHSAU may wish to consider whether to identify the relevant patient groups at a preliminary stage, so that all interested parties to an appeal can then focus their energies on assessing whether any group would find the proposed location not only less accessible but significantly so.

Ground 2 was subdivided for the purposes of argument into a consideration of the word “accustomed” separately from the words “patient group”. Mr Lock argued that there had to be evidence that the members of the group as identified used the pharmacy as a matter of custom or regularity. Mr Lock did not consider it realistic to expect a pharmacy to enquire of its customers which patient group they belonged to, nor how it was that they had made access to the pharmacy. Not only did this shed some light upon the definition to be given to “patient group” but the committee was in error here in failing adequately to consider it.

I reject this ground. There was material put before the committee as to the groups which Superdrug said were accustomed to using its pharmacy: shoppers, and workers. At paragraph 9.29 the Committee recorded the Claimant as contending that visitors “would be in the order of 99%”. I do not think it appropriate for a tribunal to be blamed for not having evidence when it recorded that which it was given by the Claimant – who had the burden of proof and, as I have pointed out, was in the best position to know, even if only impressionistically, the broad groups into which those accessing its services could be placed. It is clear that the evidence had some short-comings, and was treated by the Committee appropriately as having within it a broad degree of generalisation – which it was entitled as a specialist body, in this area, to assess having regard to that specialist expertise, drawing reasonable inferences from its own visit to the premises, the nature of the sites, and the expectations born of experience which it would have as to the use of the Superdrug pharmacy.

Ground 3 contended that the Committee did not ask themselves whether the change of location was significantly less accessible for the group travelling to the Intu by public transport, and that it did not therefore address the statutory test appropriately. It made the same error in respect of the disabled group. I do not accept that this is so. The Committee had set out the “significantly less accessible” test earlier in its decision (see paragraphs 3.8: 9.10(A); 9.15) and came to conclusions not only about accessibility, but about the degree of significance of any loss: at paragraph 9.59, for instance, it discussed the “significance” of the accessibility, and not simply the accessibility itself. It identified potential “access issues” at paragraph 9.47 in respect of shoppers, but “…found it difficult to assess the levels of accessibility…”, a clear indication that it did not simply assume that any loss of accessibility would necessarily be significant.

In short, evidence internal to the decision satisfies me that the Committee addressed the statutory test.

Ground 4 (as it was labelled in Mr Lock’s skeleton: really a subset of Ground 3) argued that the change of location was only relevant for the purposes of Regulation 24(1)(a) if it made the relocated pharmacy significantly less accessible. Since the overriding objective of the 2013 Regulations was to ensure that arrangements were in place to provide proper and sufficient drugs, medicines and appliances, ordered by a medical practitioner, the Committee should have focussed on the interests of the patients and their ability to access services “and not on the protection of the commercial interests of existing pharmacy businesses”.

I reject this criticism of the Committee. It was entitled, and would be expected, to have regard to those who were interested in the effect of the decision: what it purported to do was to receive evidence and submissions from them not about the degree to which, if at all, their own commercial interests might be affected, but the manner in which the statutory test should be applied. There is nothing in its conclusion at paragraph 9 to suggest that it did not attempt to evaluate the evidence it had, such as it was, in order to answer the question which the Regulation posed. I reject, too, the argument that “accessibility” is necessarily limited to a matter of geography. There are some cases in which that might be so: but the concept is a broad one, and the starting point is to consider what makes a relocated pharmacy less easy to go to physically, mentally or socially for an identified patient group. It was relevant, therefore, contrary to the submissions on the appeal by Mr Lock, to ask whether inclement weather might make the relocated pharmacy less easy to go to; or if for some women the thought of walking past Milestone House in the afternoon might make them reluctant to do so, making the trip to Wilson Street less easy for them than that to Superdrug in Intu.

As for Ground 4 (in the Grounds themselves), Mr Lock submitted that the Committee should have adopted a “balancing test” between the patient groups. The statute talks of patient “groups” in the plural, and uses the words “are accustomed”. The interpretation given to the section by the Committee was to read it in the singular, as if the words were “for any patient group that is accustomed to accessing pharmaceutical services…”. Parliament did not use those words: rather, it focussed on the plural. Its task was thus not separately to look at each group, group by group, but to take an holistic perspective. It had therefore to identify the relevant patient groups and reach a view as to whether the proposed relocation was significantly less accessible for them as a whole, balancing the accessibility of the new proposed location between different patient groups. The Committee had not purported to take an overall view balancing the effect on one group with that upon groups as a whole.

The answer to this is given by Mr Patel in the words of paragraph 14 of his skeleton argument, drawing the distinction between “exceptional;” (in his word “excepted”) and “routine” applications:

“Any requirements to be met which allow for an excepted application to be made must be construed narrowly otherwise the core requirement of meeting needs etc. assessed in the pharmaceutical needs assessment can be easily avoided. In those circumstances the requirements in Regulation 24(1)(a) should be construed as not being met where a single material patient group may find the location of the new premises significantly less accessible (including – if limited evidence is provided by the applicant about which patient groups actually access pharmaceutical services at the existing premises – a single patient group that appears less likely to be affected, based on what is known about the area in general, including its demography, geography and topography). There is no need… for there to be an assessment of relocation upon different patient groups as a whole and then to reach a balanced decision as to whether, across all patient groups, the new premises is significantly less accessible. There may not be more than one particular patient group which is affected.”

The accent in these submissions, rightly in my view, takes into account the decision which the legislation assumes to have been made previously – that a specific provision, at the locations and by the means offered, is appropriate for the particular area. Needs within the area will vary, from group to group. The overall provision has been designed to satisfy all. Some material groups may particularly be accommodated at one location, others at others, within the same area. Relocating thus may affect the provision for a particular group within the area covered by the initial scheme. The danger of requiring “broad” assessments to be made by weighing accessibility across all groups is that material minority groups may be significantly affected but the proposed relocation nonetheless proceed: if this approach is applied across the board it is not difficult to see that whereas the provision for the majority of those seeking access to pharmacies in an area may be maintained, for substantial minorities it may cease to be. The services are provided for all: the approach runs the risk of significantly disadvantaging some for whom original provision was made. There seems little point in the statute asking that the assessment be made by breaking down those who used the pharmacy’s services into separately identified and separately assessed patient groups if what is really intended is one assessment of accessibility, which runs the groups back together as one in order to make it. I reject this ground.

I return to Ground 1. This is the point which I have found most troubling.

Emergency hormonal contraception is a service offered by some pharmacies to those under the age of 18. It is not provided to those over the age of 18 as part of the National Health Service. Advice about contraception, however, comes within the scope of services which are provided. The distinction between advisory and dispensing services is critical for understanding the rival submissions in respect of this Ground.

Mr Lock QC argues that the private sale of the emergency hormonal contraception to women seeking it is not a pharmaceutical service within the Regulations. Nor did Superdrug hold a contract to deliver EHC to women under the age of 18. Therefore it followed that the provision of EHC services could not be part of “pharmaceutical services” for the purposes of Regulation 24(1)(a).

Thus far, Mr Patel did not disagree. It also appeared to be common ground that one of the pharmaceutical services for which the NHS provided was the provision of advice in connection with in “signposting and support for self care”. Advice as to contraception, and services other than the dispensing of prescriptions was in evidence before the Committee, albeit to a limited extent. In considering the submissions to it made by Day Night Pharmacy in opposition to the relocation, the Committee observed at paragraph 4.49 that if Superdrug were no longer to be used as the location of the pharmacy in question the young and trendy patient group consisting of young women (who it was submitted were “on trend irrepressible shoppers”, and at the core of the shoppers group served by Superdrug) would not be attracted or motivated to go to Wilson Street, and could not have the advantage of the promotion of healthy lifestyles (essential pharmaceutical service number 4) or sign posting services (number 5) nor would the pharmacy be stocked so as to be able to provide support for self-care (number 6). At paragraphs 9.34 and 9.35 the Committee repeated the view of the interested parties that there would be a number of young women aged over 18 seeking contraceptive advice. Not only are there these indications from within the body of the Committee’s decision, but the three members of the Committee confirmed them in witness statements. Thus Ms Lee mentioned at paragraph 15 of her witness statement that she knew that Superdrug did not hold a local authority contract to provide a free service in respect of EHC; and Ms Castle had said – and she confirmed – that as suggested by the parties the take-up of EHC services (including advice) was much higher in pharmacies where young women would not draw attention to themselves. Mr Chapman confirmed that the Committee knew that Superdrug had not been authorised to provide EHC other than as a private service, but that the Committee had:

“discussed EHC in the round when making our determination, including sign-posting and advice about EHC, which the Superdrug pharmacy was approved to provide, and which we thought young women would be more likely to take up in Superdrug than in the new proposed pharmacy site, because they were likely to be in the Superdrug shopping for other items. Certainly, I would expect a pharmacist to give advice about EHC, include sign-posting a patient to where this can be provided as an NHS service, even if they are not able to provide the product itself. This advice and sign-posting is in itself an NHS pharmaceutical service. It was that which I had in mind. I was aware that provision of EHC in a private capacity was not of itself, a pharmaceutical service for our purposes.”

Fiona Castle made the same point at paragraph 15 of her witness statement.

The Claimant seeks to give a wide definition to the expression “EHC services”. However, given what was said by the members of the panel both in the decision itself, and by witness statement, I conclude that the Committee did not fall into the error of considering the dispensing of EHC when considering whether it was a relevant service which women over 18 could access.

There is slender material within the decision upon which the Committee could conclude that women seeking EHC services (in terms of those services ancillary to the dispensing of EHC itself) would find the Wilson Street premises significantly less accessible. There was scant evidence as to the extent to which persons within that group were accustomed to seeking such services. It was this group which was given particular stress in the conclusions of the panel to which I have already referred. Nonetheless, given: (a) that it was for the Claimant to produce the necessary evidence; (b) the Committee was a specialist panel, entitled to use its own knowledge of pharmaceutical provision, and to assess the likely impact of a change of location upon services; (c) the interpretation of the word “accustomed” cannot sensibly relate to individuals who are part of a group (though that is the effect of Mr Lock’s submissions) but rather to persons each of whom may be described as a member of a particular group though acting on their own - it may be on one occasion only – to access services, such that collectively the members of the group may be said to be accustomed to doing so; (d) that the Committee had shown that it had it in mind services other than the dispensing of a prescription; and (e) at paragraph 9.59 the Committee frankly acknowledged the difficulties caused by the lack of clear evidence, I am persuaded overall that the Committee was entitled to come to the conclusion it did.

Since the decision was promulgated, the Claimant has according to the Defendant produced material that shows that EHC services (at least involving the dispensation of contraception) had been accessed on a number of occasions in the previous year. The Claimant asserts that there is no indication of advice having been given in relation to these occasions, though it might have been recorded: there was no evidence of any such records before the Committee, and “Superdrug have no record of any advice having been given”. Both these points cannot assist me in deciding whether the Committee was entitled to conclude as it did, for a decision can hardly be in error of law if the information which renders it such had not been placed before the decision maker at the time.

Ultimately, I have come to the conclusion that the Committee was entitled to regard women seeking such services as were provided by the NHS in respect of EHC as a patient group and, having done so, and in the absence of evidence which might have been provided by the Claimant, was entitled to give this some weight. Though another decision maker might well have accorded the matter less weight than did the Committee in question, the decision it reached fell short of being perverse. The Committee had not misdirected itself, nor taken into account matters it should not. It gave clear reasons for thinking that the members of the particular group which it assessed from its experience, and from the information provided to it, would have been accustomed to using Superdrug for these purposes would be significantly affected in their access to the relocated pharmacy. Thus though, as I have recorded, I consider this point the most difficult to resolve, ultimately I have concluded that the challenge fails.

The position of the FHSAU is not identical to that of a statutory tribunal, but is closely analogous to it. The decision in question before me is one made by a Committee itself hearing what amounted to an appeal against an earlier adverse determination made by the Defendant. As expressed by Laws LJ in his concurring judgment in Glennie v Independent Magazines Ltd. [1999] EWCA Civ 161: “It is a general principle of the law that it is a party's duty to bring forward the whole of his case at the proper time.” This may apply with greater force to tribunals of fact than it does tribunals of law, for it may not be possible for an appellate court to determine a point of fact if it is not in possession of all the material facts and evidence that might bear upon it, it is unlikely to be in the position of a fact-finding tribunal, and nor should it attempt to do so when its role is appellate rather than fact-finding, whereas these factors may not apply to an appellate court determining an issue of law where, at any rate, all the necessary facts have already been established. Nonetheless, it ought to be no more contemplated that a party should be permitted to make a case by way of judicial review, asserting that a tribunal (albeit not a statutory body) has erred in law by failing to adopt an approach that it was never previously suggested that it should, let alone to the tribunal itself, than it is in the case of a statutory tribunal such as the employment tribunal to which the comments of Laws LJ (though generally expressed) specifically related.

There is, further, a very real reason why a similar approach should be taken. Judicial review concerns public administration. It is important both that if the public body concerned has been in error, it is speedily put right, and that if it has not that that is speedily recognised, for otherwise public administration may be uncertain, and challenged decisions that need to be implemented may not be for fear that they are unlawful.

It was on this point that I invited further submissions, which I received in writing from both parties.

They drew my attention to R (Edwards & Ors) v Environment Agency & Ors [2008] UKHL 22 in which at para. 63, Lord Hoffmann said:

“It is well settled that "the grant or refusal of the remedy sought by way of judicial review is, in the ultimate analysis, discretionary" (Lord Roskill in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 656.) But the discretion must be exercised judicially and in most cases in which a decision has been found to be flawed, it would not be a proper exercise of the discretion to refuse to quash it. So in Berkeley v Secretary of State for the Environment [2001] 2 AC 603 it was conceded, and the House decided, that the Court of Appeal had been wrong to refuse to quash a planning permission granted without the impact assessment required by the EIA directive on the ground only that the outcome was bound to have been the same”

Mr. Lock QC contends that it would be wrong to do so here, too: the only exception to the grant of relief should be where the actions of the Claimant may be characterised as an abuse of process. The Claimant attempted to follow the process outlined by the public body in Guidance as to how such applications should be conducted. It only advanced a challenge to that guidance in a forum in which such a challenge could be considered, namely before the court on judicial review. No such challenge was, in practice, possible (nor would it have been effective) before a committee of the NHSLA.

The only case that the Claimant was able to find where a change of ground by the party bringing a case was relied upon as part of the reason for refusal of relief is King v Ayrshire Borough Council [1998] SC 182. The Court of Session refused to quash the council’s decision (although it was taken on the basis of an erroneous interpretation of the relevant statutory provision) on the basis that the claimant’s challenge to the council’s decision was based upon a different interpretation (which was not correct) and the successful interpretation had not been advanced until 10 months later: see 1295F-L (in particular 1295I-L).

Mr Lock QC argues that King is distinguishable because:

Mr. Patel submitted that it is well-established that the court has complete discretion whether to grant relief and as to the particular relief to be granted in judicial review proceedings (see Lord Walker in Bahamas Hotel Maintenance & Allied Workers v. Bahamas Hotel Catering & Allied Workers[2011] UKPC 4 at para. 40);

In considering how that discretion should be exercised, the court is entitled to have regard to such matters as (1) the nature and importance of the flaw in the challenged decision (2) the conduct of the claimant and (3) the effect on administration of granting the remedy: Nichol v. Gateshead Metropolitan Borough Council (1988) 87 LGR 435 at 460; Mr. Patel appeals in particular to the wider interest in good administration.

In evaluating these submissions, I start by recognising that in Edwards Lord Hoffmann went on, beyond the extract relied upon by Mr.Lock which I have already cited, to say that “Both the nature of the flaw in the decision and the ground for exercise of the discretion have to be considered”. The current case is one in which the ground for exercise of the discretion is very different from the irregularities in issue in Edwards. I accept entirely that discretion must be exercised judicially. Given that it is well recognised, as Mr Patel submits, that such a discretion is there to be exercised in an appropriate case (of which King is an example – the criticisms Mr. Lock makes of it fall short of suggesting it has ever been held to be an incorrect exercise of discretion) and that therefore the sole determinant of whether a decision should be quashed is not whether a decision is in error, but whether relief should be granted, I accept and adopt as relevant the matters set out in Nichol. In my judgment, where a party urges a particular view of the law upon a domestic appellate tribunal the situation is closely analogous to that where the applicable principles are as were articulated by Laws LJ in Glennie. It does no service to public administration for a party to seek to overturn decisions of a public body by arguing that the body was in error by adopting the very argument that party had advanced before it.

Accordingly, if I had been wrong to dismiss Mr. Lock’s argument as to the meaning to be given to “patient group” I would in any event have exercised my discretion so as to refuse the Claimant relief in respect of that ground.

In conclusion, this claim fails on all grounds.