REF:
SHA/17649
APPEAL AGAINST HERTFORDSHIRE & SOUTH MIDLANDS
AREA TEAM, NHS COMMISSIONING BOARD ("NHS
ENGLAND") DECISION TO REFUSE AN APPLICATION BY
RAINBOW PHARMACY FOR A RELOCATION THAT DOES NOT
RESULT IN A SIGNIFICANT CHANGE TO PHARMACEUTICAL
SERVICES UNDER REGULATION 24 FROM 12 WHITE HORSE
DRIVE, EMERSON VALLEY, MILTON KEYNES MK4 2AS TO 21
WITHAM COURT, BLETCHLEY, MILTON KEYNES MK3 7QU
1
1 Trevelyan Square
Boar Lane
Leeds
LS1 6AE
Tel:
Fax:
Email:
0113 86 65500
0207 821 0029
[email protected]
The Application
By application dated 16 December 2013, Rainbow Pharmacy (“the Applicant”) applied to NHS
England for a relocation that does not result in a significant change to pharmaceutical
services under Regulation 24 from 12 White Horse Drive, Emerson Valley, Milton Keynes
MK4 2AS to 21 Witham Court, Bletchley, Milton Keynes MK3 7QU.
In support of the
application it was stated:
1.1
In respect of part 6 of the application form (refers to Reg 31) the applicant stated:
‘Regulation 31 is not applicable/engaged.’
1.2
1.3
The applicant considers that the new premises at 21 Witham Court are not
significantly less accessible for the patient groups accustomed to accessing
pharmaceutical services at the existing premises at 12 White Horse Drive for the
following reasons:
1.2.1
The relocation site is no more than 270 metres from the existing premises.
1.2.2
Access by foot from the existing premises to the relocation site is an easy
walk via an underpass under Standing Way.
1.2.3
It takes only about 4 - 5 minutes to walk from 12 White Horse Drive to 21
Witham Court.
1.2.4
There are no barriers or impediments along the route. In fact the route does
not involve crossing the path of motor vehicles at any point except at the culde-sac off Witham Court serving just four homes.
Furthermore the Department of Health Guidance Chapter 10 at page 14 states that
“Relocations should result in improved access…” In the applicant’s view the
relocation to the new premises will result in improved access for the following
reasons:
1.3.1
The new premises are situated near the Whaddon Medical Centre and will
enable patients visiting the Medical Centre to access pharmaceutical services
at the same site if they so choose.
1.3.2
Patients who wish to visit the new premises by car will have access to 60 car
parking spaces at the site, including dedicated spaces for disabled drivers.
1.3.3
21 Witham Court is a new purpose built unit of approximately 1,200 square
feet which will be fitted to a high standard providing a bright and spacious
environment for patients. It will include a large private consultation area
together with a fully compliant treatment room which will facilitate a greater
uptake of additional services.
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1.3.4
1.4
The above demonstrates that the new premises at 21 Witham Court are not
significantly less accessible for the patient groups that are accustomed to accessing
pharmaceutical services at 12 White Horse Drive and that the relocation will result in
significant improvement in access to Pharmaceutical Services.
1.5
Granting the application will not result in a significant change to the arrangements
that are in place for the provision of local pharmaceutical services or pharmaceutical
services (other than those provided by dispensing doctors) in any part of the HWB
area or any controlled locality within 1.6 kilometres of the new premises for the
following reasons:
1.5.1
Granting the application will not result in an increase in the number of
pharmacies within the area.
1.5.2
Given the short distance involved in the relocation and the fact that the same
services will be available from the new site, which can be accessed very
easily by the patients who use the pharmacy at it's present location, there will
be no significant change to the current provision of local pharmaceutical
services.
1.6
Overall, therefore, the relocation will not result in any significant change in the
provision of Pharmaceutical Services.
1.7
There are no plans published in the PNA which would be affected by the relocation.
Whilst the applicant is not aware of any other significant plans for pharmaceutical
service development within the HWB area they will be happy to discuss providing any
services which the HWB may be considering commissioning in the future.
1.8
The applicant intends to provide:
1.9
1.10
2
In contrast the current premises of just 450 square feet are cramped and
barely satisfactory.
1.8.1
Essential services.
1.8.2
Clinical governance.
1.8.3
Appliances – in accordance with the Drug Tariff.
1.8.4
Advanced and Enhanced services as indicated on the application form.
The applicant’s proposed core opening hours are:
Mon to Fri
9.00 to 1.00pm 2.00 to 6.00pm
Sat
-
Sun
-
The applicant’s proposed total opening hours are:
Mon to Fri
9.00 to 1.00pm 2.00 to 6.30pm
Sat
9.00 to 12 noon
Sun
-
The Decision
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NHS England considered and decided to refuse the application. The decision letter dated 14
May 2014 states:
2.1
It was confirmed that the applicant is applying for a no significant change relocation
within Emerson Valley/Bletchley i.e. the area of the relevant HWB and that fitness to
practice confirmations are already held by NHS England.
2.2
It was advised that a site visit had been completed and that the existing pharmacy is
located within a small neighbourhood parade of shops and that the unit currently
occupied is small and has very limited space. The distance between the two premises
was measured and it was noted that access was via a short wide underpass and that
the overall distance, as measured by architects wheel, is 279.3 metres. NHS England
also noted the position of pharmacies and GP surgeries as detailed on a map.
2.3
NHS England were advised that, applications submitted under regulation 24 are
excepted applications i.e. ‘excepted’ from the market entry test and that if the
application fails to meet any one of the criteria of regulation 24 it must be refused.
Therefore the applicant would be required to explain how the relocation satisfies the
requirements of regulation 24(1) and address the following criteria:
2.3.1
that the pharmacy is not significantly less accessible to the patient groups
that are accustomed to accessing pharmaceutical services at the current
premises.
2.3.2
why it will not cause a significant change to the arrangements for the
provision of LPS or pharmaceutical services in any part of the area.
2.3.3
why it will not cause significant detriment to the proper planning of
pharmaceutical services in the area of the HWB.
2.3.4
confirm that the applicant undertakes to provide the same services; and
2.3.5
whether there is to be any interruption of service, and if so whether the
reasoning amounts to good cause.
Determining the Application
Regulation 24(1)(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;
2.4
NHS England noted the distance and route as detailed in the report and considered
that, although in terms of distance from the neighbourhood centre shopping parade
this could be considered as an insignificant distance, this neighbourhood centre is on
the outskirts of Emerson Valley and that those patients living within the Emerson
Valley estates to the north west of the existing pharmacy would perceive the overall
distance which they would be required to travel would be significant and does not
reflect the normal flow of population to e.g. shopping facilities, whereas the existing
pharmacy is located in the neighbourhood centre shopping parade. It was observed
that on admission of the applicant that 40% of the patients, for whom they dispense
NHS prescriptions, live in Emerson Valley and it would therefore entail the reliant
population having to walk through the underpass and on to the new location or
making a longer journey by road. NHS England therefore considered that a significant
proportion of these patients would find the new location less accessible.
24(1)(b) in the opinion of NHS England, granting the application would not result in a
significant change to the arrangements that are in place for the provision of LPS or
pharmaceutical services other than those provided by a person on a dispensing
doctor list (i) in any part of the area of the relevant HWB;
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2.5
NHS England felt that, although the distance was not great, for the patients in
Emerson Valley and Tattenhoe this relocation would result in a significant change in
the provision of pharmaceutical services and would result in the removal of
pharmaceutical services from their immediate areas.
24(1)(c) NHS England is satisfied that granting the application would not cause
significant detriment to proper planning in respect of the provision of pharmaceutical
services in its area;
2.6
NHS England considered that the proposed relocation would not cause any detriment
to proper planning for the provision of NHS pharmaceutical services.
24(1) (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; and
2.7
NHS England noted that the applicant had confirmed, within the submitted
application, that the same pharmaceutical services including enhanced services,
whether or not NHS England chooses to commission them, that are currently
provided at 12 White Horse Drive would be provided at the proposed premises at 21
Witham Court.
24(1) (e) the provision of pharmaceutical services will not be interrupted (except for
such period as NHS England may for good cause allow)
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2.8
NHS England also observed that the applicant had indicated, in the application form,
that there would be no interruption to service provision.
2.9
NHS England therefore considered that this application does not meet all the required
criteria under the NHS (Pharmaceutical Services) Regulations 2013, regulation 24,
and that it is determined that the relocation premises will be significantly less
accessible to the reliant population. NHS England, taking into account the above,
determined that the application should be declined.
The Appeal
In a letter to the Family Health Services Appeal Unit of the NHS Litigation Authority, dated 3
June 2014, the applicant appealed against NHS England’s decision. The grounds of appeal
are:
3.1
NHS England noted that the overall distance between the two premises, as measured
by an architect's wheel is 279.3 metres, The PSRC concluded that "in terms of
distance from the neighbourhood centre shopping parade this could be considered as
an insignificant distance". Nevertheless, in relation to Regulation 24(1)(a), NHS
England determined that a significant proportion of patients would find the new
location less accessible. NHS England’s arguments culminating in this conclusion is
flawed for the reasons outlined below.
3.2
NHS England considered that because this neighbourhood centre is on the outskirts
of Emerson Valley those patients living within the estate to the north west of the
existing pharmacy would "perceive" the overall distance as being significant. NHS
England appears to have refused the application on the grounds of a perception of
the new location being less accessible rather than it actually being significantly less
accessible.
3.3
Furthermore NHS England has incorrectly considered and/or given the impression
that the shopping facilities at Emerson Valley Local Centre are the only facilities
available to the residents living to the north west and therefore a significant proportion
of the 40% of patients who use the pharmacy at it's present location must live to the
north west of the existing pharmacy. This is not the case and the vast majority of
Emerson Valley residents who use the pharmacy live within close proximity of the
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pharmacy. The residents living in the north west sector of Emerson Valley would find
it more convenient to use the other neighbourhood centre shopping parade in
Emerson Valley situated at the junction of Bowland Drive and Tattenhoe Street on the
north western outskirt of the estate. This parade has a larger Co-op supermarket and
is located adjacent to the local school. For these residents the Westcroft District
Centre with all it's amenities including a pharmacy is also much closer than the
Emerson Valley Local Centre where the existing pharmacy is located. The map at
Appendix 1 shows the location of these shopping Centres. NHS England appears to
have ignored this. The Committee will note that all these centres are located on the
outskirts of their respective estates so that they can be accessed by residents of
neighbouring estates as well.
3.4
NHS England has incorrectly concluded or assumed that the residents living with in
Emerson Valley to the north west of the existing pharmacy are reliant upon receiving
pharmaceutical services from the existing pharmacy. It has failed to properly consider
the choice of pharmaceutical service providers available to the patients living in this
part of the estate. According to the NHS Choices website these residents have a
choice of THREE other pharmacies which are closer to them than the applicant’s
pharmacy at White Horse Drive. This information is illustrated at Appendix 2. For the
purpose of the illustration the NHS choices search refers to the post codes, MK4 2JE
and MK4 2JF, which relate to locations in the north west of Emerson Valley as shown
on the map at Appendix 2. The map also shows the location of the respective
pharmacies.
3.5
It was observed by NHS England that the relocation would entail the reliant
population having to walk through the underpass and on to the new location.
However NHS England had already noted that access was via a short wide
underpass and there is no mention that the underpass presents any impediment to
the journey. If the reliant population referred to by NHS England are the residents of
north west Emerson Valley then they would constitute only a small minority and in
any case it is highly unlikely that they would walk to the pharmacy. Car ownership in
the area high and the few residents who use the pharmacy would make the journey
by car.
3.6
The applicant would challenge the conclusion by NHS England that the relocation
would entail the residents of north west Emerson Valley making a longer journey by
Road. With the benefit of their local knowledge they would take the most direct route
get to the pharmacy along Tattenhoe Street and Standing Way rather than the
convoluted route through the estate. Likewise the journey to the relocation site would
be along Tattenhoe Street and Muirfield Drive which would be slightly shorter. This is
illustrated on the map at Appendix 3.
3.7
NHS England has ignored the Department of Health Guidance relating to Regulation
24(1). The applicant refers in particular to the guidance at paragraph 29 of Chapter
10 and the table on page 11 which states that "Relocations should result in improved
access " The PSRC acknowledges that the unit currently occupied by the pharmacy
is small and has very limited space. However it has failed to consider or give any
weight to the following improvements in access by virtue of the relocation.
3.7.1
The new premises are situated near the Whaddon Medical Centre and will
enable patients visiting the Medical Centre to access pharmaceutical services
at the same site if they so choose.
3.7.2
Patients who wish to visit the new premises by car will have access to 60 car
parking spaces at the site, including dedicated spaces for disabled drivers.
There will be direct access into the pharmacy from the car park as well as
from the main road.
3.7.3
21 Witham Court is a new purpose built unit of approximately 1,200 square
feet which will be fitted to a high standard providing a bright and spacious
6
environment for patients. It will include a large private consultation area
together with a fully compliant treatment room which will facilitate a greater
uptake of additional services. A copy of the Floor plan of the new premises
which was supplied to NHS England is attached at Append ix 4.
3.8
NHS England has failed to consider one of the key points from the patient survey
included in the Milton Keynes PCT Pharmacy Needs Assessment (paragraph 6.1.1
page 71) that the majority of patient s (53%) felt it was better for the pharmacy to be
nearer GP than home. The same survey highlighted that "The most important issues
for patients are receiving a quick service, having medicines in stock and privacy." The
above demonstrates that the location of the new premises at 21 Witham Court is not
significantly less accessible and that the relocation will result in significant
improvement in access to Pharmaceutical Services.
3.9
In relation to Regulation 24(1)(a) the PSRC considered "that a significant proportion
of these patients would find the new location less accessible." The applicant has
demonstrated above that the proportion of patients referred to cannot be considered
as being significant. The applicant would respectfully ask the Appeal Unit to note the
use of the phrase "significantly less accessible" in the wording of Regulation 24(1)(a).
NHS England considered the new location to be "less accessible" but it did not
consider the new location SIGNIFICANTLY less accessible. NHS England should,
therefore, have concluded that the application meets the criteria under Regulation
24(l )(a).
3.10
With regard to Regulation 24(1)(b) the "PSRC felt that, although the distance was not
great, for patients in Emerson Valley and Tattenhoe this relocation would result in a
significant change in the provision of pharmaceutical service and would result in the
removal of pharmaceutical services from their immediate areas." It would appear that,
in relation to criterion (b), NHS England has determined that the criterion has not
been met merely on the basis that pharmaceutical services will be removed from their
immediate area. The applicant would assert that all relocations, by their very nature,
result in the removal of pharmaceutical services from their immediate areas.
Furthermore the current location cannot be considered to be in the immediate area of
Tattenhoe. Only a very small percentage of patients come from Tattenhoe and the
ones who do tend to use their cars to access the pharmacy. These patients would
actually find it slightly easier and would have a shorter distance to travel to access the
pharmacy at the new location via Standing Way, Tattenhoe Street and Muirfield
Drive.
3.11
The applicant further add that the phrase "immediate area" is synonymous with
neighbourhood and suggest, respectfully that NHS England may have inadvertently
or otherwise applied the wrong test when considering Regulation 24(1)(b). The
concept of neighbourhood applied to the 2005 Regulations but is not relevant a
relevant consideration under the 2013 Regulations under which the current
application is made.
3.12
If the paragraph in the decision notice relating to the PSRC's consideration under
Regulation 24(1)(b) is paraphrased it would read "and would result in the removal of
pharmaceutical services from their neighbourhood"
3.13
In view of the grounds outlined above the applicant would ask the Appeal Unit to
review the decision of the Hertfordshire and South Midlands Area Team in respect of
the application. The applicant trusts that the Unit will conclude that the application
meets the required criteria under Regulation 24 and grant the application.
3.14
The following were provided as enclosures with the appeal letter:
Appendix 1 - a map entitled ‘Location of neighbourhood and district centres in and
around Emerson Valley.’
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Appendix 2 - a map entitled – ‘Location of pharmacies near North West Emerson
Valley’.
Copy pages from NHS Choices, with details of pharmacies in the MK4 2JE area.
Appendix 3 - map showing the most direct route by car from north west Emerson
Valley to the existing and proposed locations of Rainbow pharmacy.
Appendix 4 - Floor plan for 21 Witham Court, Bletchley.
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Summary of Representations
This is a summary of representations received on the appeal.
Charles Russell LLP (on behalf of Cox & Robinson (Chemist) Ltd )
Background
4.1
As the Authority will no doubt be aware, there is a significant background to Mr
Tosar's inclusion in the pharmaceutical list at 12 White Horse Drive.
4.2
Mr Tosar applied for preliminary consent prior to inclusion in the pharmaceutical list
for premises "in the vicinity of Emerson Valley Local Centre and Surrounding Roads"
by an application dated 18th September 2009.
4.3
In his application form, Mr Tosar stated, amongst other things, that: "The proposed
Pharmacy will be located in the vicinity of the Emerson Valley Local Centre. Emerson
Valley has a vibrant Local Centre which includes a general store, a post office, a hair
and beauty salon, a fish and chip shop take-away and a restaurant. There is also a
public house and community centre within the local centre which has parking for 120
cars. It has all the amenities, except a pharmacy, to meet the day to day needs of the
local population."
4.4
Mr Tosar defined a neighbourhood for the purposes of that application. He proposed
that the southern neighbourhood boundary should be Standing Way (the A421).
4.5
The former PCT refused the application, and the applicant appealed. The appeal was
determined by the Authority with reference SHA/15721.
4.6
An oral hearing was held by the Authority prior to its determination of the appeal. The
oral hearing Panel stated relevantly as follows:
"10.1.3 Reference was made throughout the hearing to comments on both sides of
the argument as to Bletchley being a different area to Milton Keynes, and to Standing
Way forming the boundary between the two areas. As the Panel had found on
inspection, Standing Way was a major trunk road and a dual carriageway, and their
view was that Bletchley was a very different area to Milton Keynes and those living in
each area would not consider themselves neighbours of each other.
4.7
10.1.4 They therefore concluded that it is appropriate that Standing Way should be
the south eastern boundary of the neighbourhood...
4.8
10.1.16 The only matter outstanding therefore relating to the neighbourhood is
whether the Red Route area and the relocated doctors' surgery area to the south of
Standing Way, as proposed by the applicant, should be included in the
neighbourhood. The Panel found it difficult to accept that if, as all parties except the
PCT and the LPC had agreed, that Standing Way was a major trunk road and
boundary both to the north and south of Emerson Way, that the neighbourhood
should include a small area of residential housing to the south of it. The argument put
8
forward by Mr Greenwood [for the applicant] that it should be included is based on the
fact that there is an underpass. He maintains that that underpass is regularly used by
residents in the area to access the Emerson Valley local centre from the south of
Standing Road and from residents to the north of Standing Road to access the
doctors' surgery on foot or by bicycle.
4.9
10.1.17 Be that as it may, acknowledging that there is some pedestrian or cycle
access via the underpass, that does not, in the Panel's view mean that Standing Way
is not a boundary to the neighbourhood along its entire length. A neighbourhood
boundary is not something that is completely impossible to cross, and yet it still forms
a boundary. The Panel expressed its view that Bletchley is a completely different
neighbourhood to Emerson Valley and to accede to the applicant's suggestion that a
small part of Bletchley should for some reason be included in the neighbourhood of
this application seems somewhat arbitrary and is proposed, it would appear, to assist
the applicant in suggesting that the application site is in the same neighbourhood as
the relocated doctors' surgery. This does not appeal to the Panel."
4.10
Mr Tosar's application was granted by the Authority on the basis that it was
necessary or expedient in order to secure, in the neighbourhood of Emerson Valley
(which excluded the Witham Court area), the adequate provision of pharmaceutical
services.
4.11
Mr Tosar subsequently applied for full consent pursuant to the preliminary grant for
premises at 21 Witham Court, Bletchley, MK3 70U (i.e. the premises now proposed
by the current application and this appeal).
4.12
The PCT refused the application on the grounds that the Emerson Valley and Witham
Court were not in the same neighbourhood. The Authority upheld this decision on
appeal (reference SHA/16330).
4.13
The applicant subsequently commenced the provision of pharmaceutical services at
12 White Horse Drive, Emerson Valley, MK4 2AS.
4.14
He now seeks a relocation of that pharmacy from White Horse Drive to Witham Court.
Current application and appeal
4.15
NHS England considered - and refused – the application for relocation by a decision
dated 14 May 2014. It is evident from NHS England's letter of 14 May that it carefully
considered the application. NHS England concluded that the application did not meet
the statutory test contained within regulations 24(1)(a) and 24(1)(b). The applicant
has provided no information to cause the Authority to reach a different decision to that
reached by NHS England.
4.16
Taking each part of the regulatory test in turn, Cox & Robinson comments as follows:
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.
4.17
Regulation 24(1)(a) is a two-stage test. The Authority must first determine the
pharmacy's patient groups that are accustomed to accessing pharmaceutical services
at the current location. Once the Authority has sufficient information to determine the
pharmacy's patient groups, it must then consider whether, for those patient groups,
the location of the new premises "is not significantly less accessible"..
4.18
As the Authority will be aware, when considering the pharmacy's patient groups, the
Authority must have regard not only to the dispensing of medicines on prescription,
but also the full range of essential pharmaceutical services (including support for selfcare, the disposal of unwanted medicines, signposting, healthy lifestyle advice),
9
advanced pharmaceutical services (the new medication service and Medicine Use
Reviews) and enhanced and public health services.
4.19
It is for the applicant to provide suitable and sufficient evidence to the Authority
regarding the pharmacy's current patient groups.
4.20
The applicant in his letter of appeal has gone to great lengths to explain those people
in Emerson Valley who do not form part of the pharmacy's patient groups. However,
the only positive information that the applicant has provided in relation to the
pharmacy's "patient groups" appears to be contained in one sentence in the second
bullet point where the applicant states "This is not the case and the vast majority of
Emerson Valley residents who use the pharmacy live within close proximity of the
pharmacy". The applicant gives no further information.
4.21
In the absence of any suitable or sufficient information from the applicant regarding its
patient groups, the Authority is not in a position to conclude that the pharmacy's
patient groups would not find the proposed site significantly less accessible.
4.22
It would appear to Cox & Robinson that the applicant's patient groups are likely to be
those who live in the Emerson Valley neighbourhood as previously defined by the
NHS Litigation (ref SHA/15721). It is not accepted that the pharmacy's current patient
groups will all live "within close proximity of the pharmacy" as stated by the applicant.
The pharmacy is the only one located within Emerson Valley. Even if patients can
access convenience stores in other local centres, patients who wish to access a
pharmacy in Emerson Valley will have to access the applicant's existing site.
Secondly, the shopping area in which the pharmacy is currently located is the only
one in Emerson Valley which contains a Post Office. Again if patients wish to access
a Post Office in Emerson Valley, they will have to access the applicant's existing
location. It is therefore considered unlikely that the "vast majority" of the pharmacy's
current patient groups "live within close proximity of the pharmacy" given the services
that are only available at the Emerson Valley local centre to Emerson Valley
residents.
4.23
The Authority must then consider whether, for those patient groups, the proposed
pharmacy would not be significantly less accessible.
4.24
The pharmacy is currently located in the Emerson Valley area of Milton Keynes. It is
located within a parade of shops on White Horse Drive which include a hair salon, a
fish and chip shop, a lucky tattoo parlour, an Indian restaurant, The River Valley
Centre (with a children's nursery) and a convenience store which incorporates a Post
Office. The parade of shops form's a focal point in the area. No doubt many of those
who access the pharmacy at its current site do so by reason, at least in part, of its
location with other shops and services which they use regularly.
4.25
In contrast, the applicant's proposed site is in Bletchley. The proposed site (on
Witham Court) is wholly residential, with no nearby shops or other services. Save for
those who are present at the proposed site to visit their GP (and not all Emerson
Valley residents will be registered with the Witham Court surgery), the applicant's
existing patient groups would not be in the vicinity of Witham Court as part of their
daily lives and would have to make a special journey to the proposed site in order to
access pharmaceutical services.
4.26
The applicant gives the distance between the two sites as 270 metres. However,
firstly, this is the distance from the existing premises to the proposed premises; it is
not the same as the distance that the pharmacy's patient groups would have to travel
to access the proposed site. Given the location of the current premises (at the
southern end of Emerson Valley), it is submitted that almost all of the pharmacy's
patient groups would have further to travel than this in order to access the new
pharmacy. This is not a relocation where some of the pharmacy's patient groups
would have less distance to travel and some would have further to travel to access
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the new site compared to the existing one: almost all of the pharmacy's patient
groups would have further to travel to access a pharmacy should this relocation
proceed.
4.27
Secondly, this is the distance using the footpath and underpass beneath the
A421/Standing Way. The Authority has already identified (in granting the previous
application) that the A421/Standing Way forms a boundary and a barrier. Using this
footpath would require the reliant population to walk across open land and wooded
areas with no street lighting and to use an underpass which some residents particularly those who are more vulnerable such as older residents or mothers with
small children - would find unsuitable, especially during dark winter evenings.
4.28
In fact, by reason of the nature of the area and the barrier which the A421 represents
between the two sites, there are no suitable footpaths between the existing and
proposed sites for those who wish to avoid the underpass or walks across open
land/woodland. Notwithstanding the distance referred to by the applicant, the
applicant's patient groups would find the proposed site significantly less accessible by
reason of the need to cross the A421.
4.29
Even for those travelling by car, the proposed site would be significantly less
accessible. The distance between the two sites by road is over 1.2km and requires a
very significant detour. The car parking at the proposed site is further from the
proposed pharmacy unit than the car parking at the existing site.
4.30
Cox & Robinson enclose photographs showing the route between the existing and
proposed sites, and the two sites themselves.
Granting the application would not result in a significant change to the arrangements
that are in place for the provision of pharmaceutical services
4.31
Granting this application would result in a significant change in arrangements for the
provision of pharmaceutical services in the area.
4.32
The application was granted to meet an identified inadequacy in Emerson Valley. The
Litigation Authority previously defined the A421/Standing Way as a neighbourhood
boundary since it is "a major trunk road and a dual carriageway." Notwithstanding
submissions from the applicant in relation to that previous application, the Authority
specifically excluded the area around Witham Court from its definition of the
neighbourhood of the applicant's existing premises. The Authority determined that the
existing premises are in Emerson Valley and that the Witham Court area is part of
Bletchley which is "a very different area" from Milton Keynes.
4.33
The applicant has already made two attempts to open at Witham Court. The first
when he attempted, unsuccessfully, to include the Witham Court area in the
neighbourhood of Emerson Valley and the second when he applied for full consent
for premises at Witham Court. Both were unsuccessful because the Authority
concluded that Witham Court is not in the same neighbourhood as Emerson Valley. If
the applicant had wished to commence the provision of pharmaceutical services from
premises in Witham Court he could, of course, have specified those premises in his
application. He did not do so.
4.34
Granting an application for relocation from the Emerson Valley local centre to Witham
Court would significantly undermine the reasons given by the Authority in determining
the previous application.
4.35
It would run counter to the findings made by the Authority in relation to that previous
decision.
4.36
Whilst it is accepted that the Authority is no longer required to consider whether the
proposed and existing premises are in the same neighbourhood, the proposed
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relocation from Emerson Valley to Bletchley would result in a significant change in
arrangements for the provision of pharmaceutical services in the area. It would
undermine the reasons given by the Authority when it granted the previous
preliminary consent application and would undermine the reasons given by the
Authority when it refused the full consent application at Witham Court.
4.37
Granting the application would deny the residents of Emerson Valley access to a
pharmacy within that area and from within the local shopping centre. This is
particularly relevant in the determination of this appeal because of the presence of
the A421/Standing Way which acts as a significant boundary and barrier. Granting
the application would allow the Pharmacy to move to an entirely separate area which
has its own identity. This would result in a significant change in arrangements in place
for the provision of pharmaceutical services.
4.38
Cox & Robinson invite the Authority to uphold NHS England's decision and refuse this
application.
Lloyds Pharmacy Ltd
4.39
NHS England appears to have made a logical assessment of the application and has
provided detailed reasons for their decision. Lloyds stand by the comments they
submitted to NHS England as part of the initial consultation process.
Lloyds letter to NHS England dated 18 February 2014 stated:
4.40
Lloyds note that the applicant has failed to identify any patient groups that are
accustomed to accessing the current premises. NHS England will be aware this is a
requirement of Regulation 24.
Rainbow Pharmacy (Applicant) extract of letter to NHS England dated 14 March 2014
4.41
In the first instance, with regard to the patient groups who are accustomed to
accessing pharmaceutical services from the existing premises, Rainbow pharmacy
would refer NHS England to the attached table which summarises the source of
prescriptions dispensed by the pharmacy. The data is derived from the pharmacy's
Patient Medication Records (PMR) and is a representative profile of patients who use
the pharmacy for all pharmaceutical services including self care.
4.42
You will note from the figures that:
4.42.1 the majority of patients (51%) live in the Bletchley post code area to the south
of Standing Way (A421).
4.42.2 40% of patients live in Emerson Valley.
4.42.3 3. 85% of prescriptions dispensed are issued by Medical Practices in
Bletchley i.e. to the south of Standing Way.
4.43
5
Further analysis of PMR data shows that 62% of prescriptions dispensed for patients
resident in Emerson Valley are issued by Medical Centres located south of Standing
Way.
Observations on representations
Observations received on the representations.
Rainbow Pharmacy (Applicant)
12
5.1
The applicant wishes to make the following observations in response to the
representations and would ask the Pharmacy Appeals Committee (The Committee)
have regard to these when they consider the appeal.
5.2
It is significant to note that representations have been received from one contractor
only namely Cox & Robinson Ltd. Six local contractors and the Local Pharmaceutical
Committee (LPC) were amongst the parties consulted following the applicant’s
appeal. Four of these contractors, of whom three are nearer to the proposed location,
have not submitted any comments. The LPC has also remained silent and Lloyds
Pharmacy has made a late submission.
5.3
Before responding to the solitary valid submission from Cox & Robinson Ltd, the
applicant would like to highlight an omission of one pharmacy from the list and map
distributed with the bundle of papers. The Westcroft Pharmacy at 1 Savill Lane,
Westcroft, Milton Keynes, MK4 4EN, does not appear on the list or the map.
5.4
Turning to the representations from Cox & Robinson Ltd Charles Russell LLP has
outlined the background to the applicant’s application for inclusion on the
pharmaceutical list at the current location of 12 White Horse Drive in which they have
gone to great lengths to describe how the neighbourhood was defined for that
application. There are, however, serious inaccuracies and omissions in their account.
The Committee will, no doubt, agree that the concept of neighbourhood was part of
the statutory test under the old 2005 Regulations but has no relevance to the current
application or appeal which is made under the new 2013 Regulations.
Notwithstanding this fact, the applicant would like to highlight these inaccuracies and
the omissions.
5.5
Charles Russell state that the applicant had proposed that the southern
neighbourhood boundary should be Standing Way. This is incorrect. In fact, the
Committee will see from the Authority's report (Reference SHA/15721) that all the
parties had differed on their definition of the neighbourhood. The applicant had
included the area in the vicinity of Emerson Valley Local Centre including parts of
Bletchley to the south of Standing Way as their definition whilst the PCT had
proposed that a larger part of Bletchley should have been included in the
neighbourhood. In the end the panel adopted it's own boundaries for the
neighbourhood which differed from everyone else's.
5.6
Charles Russell state (page 2 paragraph 5) that "Mr Tosar's application was granted
by the Authority on the basis that it was necessary or expedient in order to secure, in
the neighbourhood of Emerson Valley " They further state (page 3 paragraph 4) that
"The application was granted to meet an identified inadequacy in Emerson Valley."
This is factually incorrect on two counts.
5.6.1
The neighbourhood determined by the Panel included Emerson Valley and
Furzton - not just Emerson Valley.
5.6.2
The Authority granted the application on the basis of an inadequacy identified
at the location of the Whaddon Medical Centre to the south of Standing Way
adjacent to Emerson Valley i.e. outside the defined neighbourhood. The
following paragraph 10.2.10.4 of the Oral Hearing panel's report; omitted by
Charles Russell, confirms the conclusion of the Panel:
(Oral Hearing Report - SHA/15721 paragraph 10.2.10.4) " Finally, that Panel
member felt that the move of the surgery did cause a migration of patients to
the Standing Way area adjacent to Emerson Valley and the provision of a
further pharmacy in that area could therefore be considered expedient
(although not necessary)."
Regulation 24(1) (a) - Patient Groups.
13
5.7
The old regulations required that a neighbourhood be defined before an application
could be determined. The neighbourhood was defined by geographical features and
the type of housing etc. and did not necessarily reflect the patient groups who would
use the pharmacy.
5.8
As stated above all the parties had disagreed on the definition of neighbourhood and
the Authority, at it's prerogative, adopted a particular definition. In relation to
Regulation 24(1)
5.9
Charles Russell are suggesting, solely on the basis of the neighbourhood defined
under the old regulations, that the pharmacy's patient groups are those who live in
Emerson Valley. They state that "It is not accepted that the pharmacy's current
patient groups all live within close proximity of the pharmacy."
5.10
However the applicant’s pharmacy has now operated at the current location for over
eighteen months and they were able to build, using their pharmacy data, a profile of
patient groups who use the pharmacy with reference to where they live and which
surgeries they visit . This information, illustrated in the tables at Appendix 1, was
provided to NHS England. The Committee will note that 60% of patients live outside
Emerson Valley with the majority (51%) residing in Bletchley.
5.11
By way of an observation it is worthy of note that this data supports the definition of
the neighbourhood originally proposed by the PCT and the applicant i.e. that the
pharmacy will be used by patients living on either side of Standing Way in Emerson
Valley and in Bletchley.
5.12
Only 4% of the applicant’s pharmacy users live in Furzton.
5.13
In rebuttal to Charles Russell's comments as above and NHS England's comment
that "those patients living within the Emerson Valley estate to the north west of the
existing pharmacy would "perceive" the overall distance" as being significant the
applicant has further analysed their PMR data in detail. In order to demonstrate that
the number of the applicant’s pharmacy patients living within Emerson Valley to the
North West is very small and does not constitute a significant patient group. To this
end the applicant has identified all the patients who live within the Emerson Valley
estate to the North West and the prescriptions dispensed for this patient group. For
the purpose of this exercise the applicant has identified North West Emerson Valley
as the area consisting of all the streets off and including Wenning Lane, Rusland
Circus, and Hodder Lane. A detailed breakdown of prescriptions by street is
illustrated at Appendix 2. At Appendix 3 the applicant has provided a satellite map of
the area to illustrate the proximity of the majority of patient groups to the current
location and the proposed location.
5.14
The pharmacy has only 58 (fifty eight) patients from North West Emerson valley of
whom only 6 (six) are over the age of 60. Furthermore only 21 (twenty one) of these
patients are active i.e. those who have visited the Pharmacy during the past three
months. This represents a mere 1.22 % of the total number of patients on the PMR.
The data also confirms that only 1.36 % of all prescriptions dispensed during the
three months to August 2014 were for patients living in North West Emerson Valley.
The applicant respectfully suggests that this cannot be considered as being a
significant number and trust that the Committee will conclude that the significant
majority of the patient groups live near the pharmacy on either side of Standing Way.
5.15
The applicant should point out that whilst the data is derived from prescriptions
dispensed it is also a reflection of the patient groups who visit the pharmacy for other
services. The pharmacy does very little over the counter business due to it's hidden
location (photos provided).
Regulation 24(l)(a) - Accessibility.
14
5.16
Charles Russell state (page 4 paragraph 1) that "This is not a relocation where some
of the pharmacy's patient groups would have less distance ta travel almost all of the
pharmacy's patient groups would have further to travel to access a pharmacy should
this relocation proceed."
5.17
In the light of the above statistics this statement is wholly inaccurate as the majority of
patients (51%) who live on the Bletchley side of Standing Way will have less distance
to travel to access the pharmacy at it's new location.
5.18
Charles Russell suggests that although the two sites are only 270 metres apart the
mere fact that the current site is in Emerson Valley and the proposed site in Bletchley
is a significant impediment to access. They state that "The Authority has already
identified (in granting application) that the A421/ Standing Way forms a boundary and
a barrier". This statement is also inaccurate and disingenuous. Whilst Standing Way
was determined by the Authority to be a boundary it was never suggested by the
Authority that it formed a barrier. The relevant paragraph in The Authority's Oral
Hearing Report confirming this is submitted below:
(Oral Hearing Report - SHA/15721 paragraph 10.1.18.) "In addition, the Panel has to
make reference to the Red Route that is prayed in aid (sic) by Mr Greenwood that this
small area should be included. Again, the Panel fully accepts that a boundary can be
crossed for access purposes from one side to the other of it and that is the case for
pedestrians and cyclists accessing the Red Route here, but it does not show that
Standing Way as a boundary should be interrupted in the way suggested by the
Applicants."
5.19
Indeed, the Panel found the access between the two sites to be easy. The following
extract from the same report is a summary of their independent and objective
conclusion in respect of access via the underpass at Standing Way.
(Oral Hearing Report - SHA/15721 paragraph 5 .5) "The journey from the Local
Centre car park to the surgery was past the "One Stop Shop", via an underpass
(under Standing Way) and at the top of a rise after exiting the underpass, making a
right turn through a gated area of residential housing for the elderly. The surgery was
fairly easily accessed over a distance of some 268 metres (measured by surveyors
wheel) taking 4-5 minutes. The underpass was short, well lit, and it was pleasing to
see a complete absence of graffiti. It was not an intimidating walk in the Panel's
view."
5.20
Furthermore the fact that 51% of the pharmacy's patients from Bletchley already
access the applicant’s pharmacy with ease exposes a fundamental flaw in Charles
Russell's argument. Residents of Emerson Valley also use the underpass on a daily
basis to access the surgery and schools on the Bletchley side of Standing Way.
5.21
The fact is that Milton Keynes' infrastructure consists of a network of "Grid Roads"
and "Redways" facilitating quick and easy access between estates both on foot and
by car. The Grid Road system is a criss-cross network of roads which facilitate quick
and easy access by car from one estate to another throughout the city. The Wikipedia
explains Milton Keynes Redways as follows:
'The Milton Keynes redway system (locally known as Redways) is a 169.3 miles
(272.5 km) network of cycleways/paths for cyclists and pedestrians in Milton Keynes,
Buckinghamshire, England. It is generally surfaced with red tarmac, and criss-crosses
most of the city. Some of these Redways run next to the grid roads and local roads,
with underpasses or bridges where they intersect major roads. Others run through
park land and along the floodplain of the Great Ouse and its tributaries."
5.22
There are hundreds of pedestrian footbridges and underpasses across the Grid Road
system linking estates and enabling safe and easy movement of pedestrians to
access services from neighbouring estates on a daily basis The Emerson Valley local
15
centre, located adjacent to Standing Way (one of the Grid Roads) is not unique in this
respect. To illustrate this the applicant provides Appendix 4 a map showing the
location of local centres on the surrounding estates. All are located on the edge of
their respective estates and visited by residents living on estates on either side of the
respective Grid Road.
5.23
The photographs submitted by Charles Russell appear dark and grainy and are
clearly taken from angles intended to give the impression that the route from the
current site to the proposed site is intimidating. This cannot pass unchallenged and to
this end the applicant provides at Appendix 5 a satellite image of the route as
described in the Oral Hearing report and photographs taken along the route. The
Committee will note from the photos (Photograph P4 ) that the "wooded area" along
the route referred to in Charles Russell's letter consists of just ten sparsely planted
trees and the path does not run through it. The route is almost entirely along open
ground and close to the bungalows in Witham Court. The applicant submits that the
description of the route by the Oral Hearing Panel as above is accurate and any
claims to the contrary by Charles Russell are exaggerated. Their own photographs
clearly show street lamps along the pedestrian route.
5.24
Further the applicant does not agree that for those travelling by car the proposed site
would be significantly less accessible. The residents with their local knowledge would
be aware of the Grid Road network, described above, and would be able to access
the proposed site just as easily from any direction. For Furzton and Tattenhoe
residents particularly the proposed site will be even nearer.
5.25
Regulation 24111lb) (sic) - No significant change to arrangements already in place.
5.26
Charles Russell state that granting the application would result in a significant change
in arrangements for the provision of pharmaceutical services in the area. However
they have not provided any credible reason consistent with the requirements of the
current Regulations. They assert that a relocation of 279 metres from White Horse
Drive to Witham Court will result in a significant change in the arrangements already
in place merely by virtue of a move into a different "neighbourhood" as defined under
the requirements of the 2005 Regulations. Charles Russell are relying entirely on
information and statements made prior to the grant of the application at the current
site and the unsuccessful relocation applications made under the previous
Regulations. Phrases such as "a very different area" and "move to an entirely
separate area which has it's own identity" have no legal basis under the current 2013
Regulations.
5.27
These reasons cited by Charles Russell are not only irrelevant in law but also
academic.
5.28
Having traded at the current location for over twenty months the applicant has the
benefit of experience and has demonstrated above that there is no barrier between
the two locations and people move about from one side of Standing Way to the other
with ease as part of their daily lives.
5.29
Whilst the applicant is sure the Committee will agree that the previous applications to
relocate to Witham Court made under the 2005 Regulations are also irrelevant the
applicant would highlight that at the time of making the original application for
preliminary consent the Whaddon Medical Centre and the proposed location had not
been built and therefore the Emerson Valley Local Centre was used as the reference
point for the Preliminary Consent Application.
5.30
The applicant does not agree that granting their relocation application can undermine
previous decisions. It is clear that the previous applications were considered under
different Regulations which required different tests to be applied. On the contrary, the
applicant believes that granting the relocation will reinforce the reasons given by the
Authority in the Oral Hearing Report SHA/15721 at paragraph 10.2.10.4 (see above).
16
5.31
To summarise, Charles Russell's representations are no more than a collection of
cherry picked statements from reports of previous applications dressed up to appear
relevant to the current application. The applicant hopes the Committee will recognise
that once the layers of all the irrelevant material is stripped back there is no
substance to the arguments put forward by Charles Russell.
5.32
The applicant hopes that with the information provided herewith together with that
provided with the application to NHS England and the subsequent appeal the
applicant has demonstrated that there is no barrier to access between the two sites
and that for the patient groups that are accustomed to accessing services from the
existing premises, the location of the new premises is not significantly less
accessible.
5.33
The relocation will result in improved access by virtue of the fact that the new
premises are large, purpose built and occupy a prominent position adjacent to
Whaddon Medical Centre. By contrast the existing premises are cramped and located
within a service yard.
5.34
The relocation will result in improved access because the location of the new
premises adjacent to a GP Practice accords with the preference of the majority of
patients (53%) surveyed as part of the Milton Keynes Pharmacy Needs Assessment
(PNA) (Appendix 6 provided, contains a copy of relevant page from the PNA).
5.35
Granting the application will not result in a significant change to the arrangements
that are already in place for the provision of pharmaceutical services.
5.36
The applicant trusts that in light of the foregoing information the Committee will quash
the decision of NHS England and grant the application.
Smiths Pharmacy
5.37
Smiths stand by their letter to NHS England dated 2 April 2014 regarding above
application. Also Smiths concur with Charles Russell letter to NHS Litigation Authority
dated 13 August 2014.
Letter to NHS England dated 2 April 2014
6
5.38
The PCT has previously refused a full consent contract at the proposed location for
the same applicant.
5.39
Rainbow Pharmacy at its current location was granted, after much deliberation, a
contract to serve the pharmaceuticals needs of residents of Emerson Valley and
Tattenhoe. Relocation will leave a deficiency in the provision of pharmaceutical
services for these residents.
5.40
Ourselves P & I Smith, made a minor relocation application, 29 December 2011 to a
site in close proximity to the applicant’s proposed site. This application was refused.
Initial Consideration and Site Visit
6.1
The Pharmacy Appeals Committee (“the Committee”) appointed by the Family Health
Services Appeal Unit of the NHS Litigation Authority had before it the papers
considered by NHS England, together with a plan of the area showing existing
pharmacies and doctors’ surgeries and the site of the proposed pharmacy.
6.2
It also had before it the responses to the NHS LA’s own statutory consultations.
6.3
On the basis of this information, the Committee considered it was necessary to hold
an Oral Hearing.
17
st
6.4
The hearing took place on 31 October, 2014 at the offices of Milton Keynes CCG,
Sherwood Place, Sherwood Drive, Bletchley. The Committee comprised of Mr A
Tomlinson (chair), Mr B Knox and Mr M Ryder.
6.5
The applicant was represented by Mr M Greenwood accompanied by Mr A Tosar,
Cox & Robinson Limited was represented by Nr N Wardle accompanied by Mr S
Allan and NHS England was represented by Mr S Jackson.
6.6
Before the hearing started the Committee undertook a site visit which started at the
site of the applicant’s pharmacy, in White Horse Drive, Emerson Valley.
6.7
The pharmacy is part of a small shopping precinct which also contains a kebab
takeaway, a public house, a hair and beauty salon, an Indian takeaway, a community
centre and a One Stop convenience store which also includes a post office and a
cash machine. There is ample, unrestricted and free car parking close to the precinct.
6.8
The precinct is at the south eastern edge of the housing development known as
Emerson Valley and is close to a busy main road, Standing Way. In common with
most other main roads in the Milton Keynes area pedestrians wishing to cross the
road are directed through an underpass along the network of well maintained
footpaths/cycleways.
6.9
The Committee walked under Standing Way to the Health Centre at Witham Court,
the site of the proposed pharmacy. The walk took 3 minutes. The underpass beneath
Standing Way is wide and well illuminated with gentle slopes at either side and the
Committee observed several other pedestrians using it. To the south of the
underpass there is a small open space with a few trees but this area is close to the
nearby housing which is built backing on to Standing Way. The path soon leads into
the network of roads within the housing estate to the south of Standing Way. All the
pavements are well maintained and free from obstructions. Throughout the site visit
the Committee encountered no hills or inclines of note.
6.10
The health centre is a two storey modern building served by a large car park at the
rear and a limited amount of street parking at the front. Adjacent to the centre were
two empty units one of which was advertised as being to let.
6.11
There are no bus services directly serving the centre. The nearest bus stops are sited
on Shenley Road to the north east and Tattenhoe Lane to the south.
6.12
The Committee then walked back to the applicant’s pharmacy and from there drove
to the North Furzton neighbourhood shopping centre which is slightly bigger in size to
the centre in White Horse Drive. It serves the Furzton estate to the east of Emerson
Valley. There is a doctor’s surgery there with a pharmacy adjacent to it as well as a
Tesco Express store.
6.13
From there the Committee drove to the much larger Westcroft District shopping
centre to the west of Emerson Valley where there is a large Morrisons supermarket
as well as many other retail stores including a Boots pharmacy and a medical centre.
All the shops are served by a large free car park.
6.14
The Committee then visited the other neighbourhood shopping centre within the
Emerson Valley estate. This is situated on the south western side of the estate close
to Tattenhoe Street. The only facilities the Committee observed there were a CoOperative convenience store, a “Hong Kong” takeaway and a large community
centre.
6.15
From there the Committee drove back to the applicant’s pharmacy through the estate
along Chipping Vale and White Horse Drive noting the slight change in character
between the northerly and southerly parts of the estate, the several speed humps on
the estate roads that slow traffic and the clear division between the two parts of the
18
estate created by the brook which runs north east/south west across the estate. The
houses in the estate were seen to be of good quality with private drives.
6.16
The Committee then drove from the White Horse shopping precinct to the site of the
proposed pharmacy at Witham Court. This involved joining Standing Way close to the
precinct, driving north east to the roundabout then turning onto Shenley Road and
then turning into Tweed Drive. The drive took 2 minutes.
6.17
The Committee then drove to the Smiths pharmacy on Whaddon Way. This is sited in
a parade of shops that was older than the properties seen in Emerson Valley and
some of the shops in the parade seemed to be unoccupied.
6.18
The Committee then visited the Parkside surgery close to the Community Hospital
and the Cox and Robinson pharmacy on Melrose Avenue where there is a large
tower block of flats and another neighbourhood shopping centre.
7. Evidence at the Hearing
7.1 Mr M Greenwood (for the applicant)
7.1.1 He described his client’s application and appeal as comprehensive and
eloquent.
7.1.2 He described the history of the application including the previous appeals and
pointed out that they were dealt with under the old regulations. The current
regulations did not mention boundaries.
7.1.3 He submitted that the distance between the current pharmacy and the
proposed site was 270 metres, a short distance. The local authority had a policy of
separating bus stops by at least 400 metres. By comparison, the car park at the
Westcroft Centre was of such a size that a customer could walk more than 270
metres from a parked car to access the Boots pharmacy there.
7.1.4 He described the underpass and referred to page 31 of the case papers, a
quote from a previous appeal, since when nothing had changed other than the
removal of a gate. The underpass had 18 lights, 9 each side and there were street
lights on Standing Way which illuminated the entrance and exit.
7.1.5 The One Stop shop on the precinct was open 7 days a week from 7 am to 10
pm and had CCTV cameras attached to the outside which covered the whole length
of the underpass. It could not be called a tunnel.
7.1.6 The applicant offered an unrestricted collection and delivery service to all his
patients. Some of the local surgeries transferred prescriptions to his pharmacy
electronically. Over 80% of prescriptions were written on a repeat basis.
7.1.7 The new premises was bigger, 1,200 square feet compared with 450 square
feet at the present pharmacy and it would be fitted out to a high standard. There
would be doors at the front and back and the back door would lead to the car park
where there were spaces for the disabled.
7.1.8 He stressed the importance of “significantly” in paragraph (a) of regulation 24.
Any relocation would result in the move being inconvenient for some but this was not
the test.
7.1.9 The data on page 30 referred to patients who accessed all pharmaceutical
services. The majority of patients lived to the south of Standing Way. 40% lived in
Emerson Valley. 85% of prescriptions were issued by doctors south of Standing Way
and 62% of prescriptions dispensed for patients from Emerson Valley were issued by
19
doctors from south of Standing Way. There was clear evidence that Standing Way
was not a barrier to access.
7.1.10 He provided an update to the figures on the table included at page 34. In the 3
months to September 2014 49% of presciptions at the pharmacy came from patients
with a Bletchley address and 41% came from patients with an Emerson Valley
address. This was not a significant change and it was clear that the applicant’s
pharmacy dispensed similar numbers of prescriptions from patients living on both
sides of Standing Way.
7.1.11 In the 2010 appeal it was suggested that Furzton would be part of the
neighbourhood which included the applicant’s pharmacy but the evidence did not
support that as only 4% of the prescriptions received by the applicant came from
Furzton. Only 58 of the applicant’s patients lived in the north western part of
Emerson Valley (6 aged over 60). Only 1.36% of prescriptions dispensed in a 3
month period were for patients from that area. This questioned the decision of the
area team. That decision had also referred to perception which did not form part of
the regulations. He suggested that the area team had applied the wrong test or
applied the test in the wrong way
7.1.12 In particular it was clear that granting the application would not result in a
significant change to the arrangements for the provision of pharmaceutical services.
7.1.13 The report of the site visit in the area team’s decision had referred to a tattoo
parlour at the applicant’s precinct but this had closed many months ago and had been
replaced by the pharmacy. He pointed out other errors in the report of the site visit
repeated at page 39.
7.1.14 He invited the Committee to allow the appeal for the reasons set out at page
113.
7.1.15 Following questions he confirmed that the Whaddon surgery did not yet use
electronic transfer of prescriptions. Parkside surgery had started using the system 2
months ago.
7.1.16 It was thought that so few prescriptions came from surgeries north of Standing
Way as those surgeries had pharmacies close to them.
7.1.17 Local centres were close to the edge of estates in order to avoid delivery
lorries crossing residential roads and to make them more accessible to customers
from other estates.
7.1.18 The applicant received prescriptions from the Parkside surgery as it had a
wide catchment area and he served a nursing home close to it that the doctors
visited.
7.1.19 He had no data confirming the number of patients who walked into the
pharmacy. The pharmacy attracted few chance callers as it was hidden away.
7.1.20 The pharmacy offered MURs, NMS and a private smoking cessation service.
7.1.21 Two bus services, 24 and 25, ran through Emerson Valley once every hour.
The service passed the end of Tweed Road where the medical centre was sited. The
previous appeal had given details of car ownership and the figures (which were high)
would not have changed. The Whaddon surgery had opened four years ago having
moved from near to the Smiths pharmacy on Whaddon Way.
7.1.22 In closing he submitted that the journey between the two sites was “as it is”.
Whether patients chose to make the journey was not relevant.
20
7.1.23 He reminded the Committee that the current regulations were different to
those in force at the earlier proceedings.
7.1.24 The applicant accepted that if he moved to the proposed location he would
dispense more items but it was a quantum leap to deduce from that that this would
endanger the viability of other local pharmacies. Viability was not relevant to the
current regulations.
7.1.25
Many objections to the application were based on speculation and
assumptions.
7.2 Mr N Wardle (representing Cox & Robinson Limited)
7.2.1 This application raised some unusual points concerning the regulations and
their link with the old regulations. It was helpful to consider the history of the
pharmacy and of Milton Keynes.
7.2.2 Milton Keynes was unique and had been designed around certain main roads
including the A5 and A421. The town had developed in a grid system around
neighbourhoods and the houses were boxed in by fast roads. There was a town
centre but also district centres and neighbourhood centres including the Emerson
Valley neighbourhood centres. These neighbourhood centres had similar facilities.
7.2.3 Until two years ago there was no pharmacy in Emerson Valley. He quoted from
the previous application for a pharmacy in Emerson Valley. The application was
granted and a neighbourhood boundary was created. Standing Way was still a
boundary between two different areas and was not simply a barrier.
7.2.4 The doctors had moved into the new health centre at Witham Court which Mr
Tosar had developed. Granting the present application to allow the applicant to move
to the surgery would undermine the reasons for the decisions in the previous cases.
The concept of neighbourhood was still relevant, especially for paragraph (b) of
regulation 24. The reasons given by the applicant in the previous cases for opening in
Emerson Valley were still important.
7.2.5 With regards to paragraph (a) of regulation 24, the applicant had given details
of where patients lived and some information of where they attended for medical
services. This was not the full story. There was no information as to how many
walked or drove and no information as to why they visited the pharmacy at its current
location.
7.2.6 It was also clear that most patients of the Whaddon surgery did not use the
applicant’s pharmacy. He suggested that the applicant’s pharmacy dealt with less
than 10% of the prescriptions issued by the surgery. The patients were taking
prescriptions to more convenient pharmacies. The applicant’s pharmacy was not
convenient for patients leaving the surgery. Those that did use the pharmacy did so
as it was part of a vibrant local centre.
7.2.7 If the applicant’s pharmacy moved and a patient turned up he would be told
that the pharmacy had moved and he would need to walk under the dual carriageway
to a site with no other services, hidden away where nobody goes in the course of
their daily lives. It was accepted that the distance was not great but the bigger picture
had to be considered.
7.2.8 There was no specific lighting on the footpath and it was not overlooked by
housing where it entered the underpass.
7.2.9 The pharmacy was also moving to within a surgery where some patients of
other surgeries would be reluctant to use it.
21
7.2.10 He questioned what the applicant meant by north west of the existing
pharmacy. NHS England meant by this all those living in Emerson Valley. All those
for whom the pharmacy had opened would have further to travel so the new site was
significantly less accessible.
7.2.11 There were two strands to consider when applying paragraph (b) of regulation
24, firstly the undermining of the previous decisions and secondly the pattern of
dispensing in Bletchley.
7.2.12 With regards to the first strand, the application had been granted in 2010 to
secure the needs of the patients in Emerson Valley, especially those visiting the
shopping centre. On two occasions the Whaddon surgery was excluded from the
neighbourhood and the rationale for that decision remained, namely to meet the
needs of the local population. Undermining that decision would result in a significant
change to the arrangements for the provision of pharmaceutical services.
7.2.13 With regards to the second strand, in February 2013 approximately 1,500
items were dispensed at the pharmacy. 750 of those items were prescribed by the
Whaddon surgery but the doctors there had prescribed over 14,400 items so over
13,000 items were dispensed at other pharmacies (over 95%). If the application was
allowed the pattern of dispensing would change as the applicant would dispense the
majority of prescriptions taking them out of and destabilising the network of
pharmacies.
7.2.14 He urged the Committee not to ignore the concept of neighbourhood or the
effect of granting the application on the pharmacy network.
7.2.15 Following questions he confirmed that his client offered a collection and
delivery service, made collections from the Whaddon surgery and had a few patients
in the Emerson Valley estate.
7.2.16 He had no objection to the applicant’s definition of patient groups and
considered that within the groups the following should be considered: (1) those
leaving a surgery with a prescription and (2) those for whom a prescription was
collected on their behalf and those who found it convenient to use the pharmacy at its
current site. The groups were almost exclusive. The evidence showed that patients
from the Whaddon surgery did not find it convenient to go to the applicant’s pharmacy
so the reverse would apply, namely that patients at the White Horse precinct would
not find it convenient to go to the pharmacy at the proposed location.
8. Further Consideration
8.1 The Committee had regard to the National Health Service (Pharmaceutical and Local
Pharmaceutical Services) Regulations 2013 (“the Regulations”) as amended with effect
from 1 April 2014.
8.2 The Committee first considered Regulation 31 of the regulations which states:
(1) A routine or excepted application must be refused where paragraph (2) applies
(2) This paragraph applies where (a) a person on the pharmaceutical list (which may or may not be the
applicant) is providing or has undertaken to provide pharmaceutical services
("the existing services") from (i) the premises to which the application relates, or
(ii) adjacent premises; and
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(b) the NHSCB is satisfied that it is reasonable to treat the services that the
applicant proposes to provide as part of the same service as the existing
services (and so the premises to which the application relates and the
existing listed chemist premises should be treated as the same site).
8.3 The Committee was of the view that regulation 31 did not require the application to be
refused as no person on the pharmaceutical list was currently providing or had
undertaken to provide pharmaceutical services from the premises to which the application
related or adjacent premises
8.4 The Committee was not required to refuse the application under the provisions of
Regulation 31.
8.5 The Committee had regard to Regulation 24 which requires consideration of the following
five criteria:
(a)
for the patient groups that are accustomed to accessing pharmaceutical
services at the existing premises, the location of the new premises is not
significantly less accessible;
(b)
in the opinion of the NHSCB, granting the application would not result in a
significant change to the arrangements that are in place for the provision of
local pharmaceutical services or of pharmaceutical services other than those
provided by a person on a dispensing doctor list—
(i)
in any part of the area of HWB1, or
(ii)
in a controlled locality of a neighbouring HWB, where that controlled
locality is within 1.6 kilometres of the premises to which the applicant
is seeking to relocate;
(c)
the NHSCB is not of the opinion that granting the application would cause
significant detriment to proper planning in respect of the provision of
pharmaceutical services in the area of HWB1;
(d)
the services the applicant undertakes to provide at the new premises are the
same as the services the applicant has been providing at the existing
premises (whether or not, in the case of enhanced services, the NHSCB
chooses to commission them); and
(e)
the provision of pharmaceutical services will not be interrupted (except for
such period as the NHSCB may for good cause allow).
8.6 Pursuant to paragraph 9(1)(a) of Schedule 3 to the Regulations, the Committee may:
8.6.1
confirm NHS England's decision;
8.6.2
quash NHS England's decision and redetermine the application;
8.6.3
quash NHS England's decision and, if it considers that there should be a
further notification to the parties to make representations, remit the matter to
NHS England.
8.7 The Committee considered the position in relation to each criterion.
8.8 In relation to criterion (a), the Committee considered the map submitted by NHS England
which clearly showed the locations of the existing pharmacies as well as the proposed
site and medical practices within the area.
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8.9 The Committee accepted that the patient groups who are accustomed to access
pharmaceutical services from the existing premises are those suggested by the applicant
and details of which appeared in the upper table on page 115 of the case papers. This
definition had not been challenged at the hearing. The groups were defined according to
the area (by patient address) from which a prescription received at the pharmacy had
originated. It was clear from the table as updated at the hearing that approximately half
of the prescriptions originated from patients living to the south of Standing Way. Further
evidence had been given suggesting that 85% of the prescriptions received at the
pharmacy were written by doctors in surgeries to the south of Standing Way. This
evidence had not been challenged and the Committee accepted the explanation put
forward by the applicant that the figures were attributable largely to the fact that the
nearby doctors’ surgeries to the north of Standing Way all had an adjacent pharmacy to
which their patients would take prescriptions.
8.10
The Committee regretted that the applicant had not been able to provide detailed
information concerning the number of patients who visited the pharmacy in person or the
number of patients to whom items dispensed were delivered. The Committee accepted
that those patients who received deliveries of items dispensed including those patients
residing in nursing homes had no need to attend the pharmacy in person and would not
be likely to be affected were the pharmacy to move to the new location as they would
continue to receive deliveries at their home address from the pharmacy
8.11
The Committee accepted the applicant’s assertion that had not been challenged that
there were few “chance” callers at the pharmacy at the current location owing to the fact
that the shopping centre in White Horse Drive attracted little if any passing trade.
8.12
The NHS LA received no information which indicates that special consideration needs
to be given to any group based on a 'protected characteristic'. Little information had been
provided to the Committee detailing the age or health profile of the local population. What
information was available suggested to the Committee that the statistics would be
comparable with national averages.
8.13
The Committee considered that all those who visited the pharmacy at White Horse
Drive whether by car, public transport or on foot would be able to access the pharmacy at
the new location without significant difficulty for the following reasons:8.13.1 The Committee concluded that almost all patients travelling by car directly to
the pharmacy adjacent to the new health centre, wherever their journey might
start, would find access to be as straightforward as accessing the pharmacy
at its current location. The Committee was satisfied from the evidence that
the car parking facilities at the health centre were adequate. It had also not
been disputed that the local residents were highly mobile with a higher than
average percentage having the use of one or more cars. Those patients who
used a car to access any of the facilities at the shopping centre on White
Horse Drive at the same time as visiting the pharmacy would have a choice
of undertaking the short walk to the pharmacy at its new location and then
returning or driving the short distance to Witham Court.
8.13.2 The Committee considered that for those patients living to the north of
Standing Way who did not have access to a car and who wished to visit the
pharmacy at its new location it was likely that they would choose to walk
firstly to the shopping precinct at White Horse Drive and then under Standing
Way to the footpaths leading to the health centre at Witham Court. The walk
to the health centre from the White Horse shopping precinct was not
considered by the Committee to be difficult. There were no physical obstacles
or barriers and the distance was modest. It was accepted that the underpass
was not intimidating and would not be considered as a barrier by the local
population as there were many such underpasses throughout the Milton
Keynes and Bletchley areas and they were used by local residents and
visitors as part of their everyday lives.
24
8.13.3 The Committee noted the availability of a bus service but considered that few
would use it to cover a short distance. No evidence had been provided of the
number of patients currently using the bus service. Nevertheless the service
could be of use to those who did not have access to private transport
although the Committee accepted that the nearest bus stop to the proposed
location required a short walk to be undertaken to reach the pharmacy.
8.13.4 A suggestion had been made on behalf of Cox & Robinson Limited that
patients of other surgeries might be reluctant to use the pharmacy at the new
location as it was “within” a surgery (see 7.2.9 above). The Committee was
satisfied from the evidence that the proposed location of the pharmacy was
not actually within the surgery but adjacent to it and that it could attract
patients other than those attending the surgery.
8.14
It seemed to the Committee that as a matter of common sense given the proximity of
the proposed site to the existing site and the absence of any obstacles or barriers
between them that the pharmacy at the new location would continue to serve patients
from Emerson Valley as well as patients who lived south of Standing Way and all other
patients currently served by the applicant. The Committee agreed with the applicant that
those patients who lived in Emerson Valley to the north of the brook referred to at 6.15
above which divided the estate would find it easier to travel to the main roads running to
the east or west of the estate and then to cross over Standing Way at the roundabouts
rather than travelling to the site of the current pharmacy. The Committee had noticed the
steps taken by the developers of the estate to discourage traffic from driving through the
estate. The Committee also considered that all those patients of the applicant’s pharmacy
who lived to the north of Standing Way in estates other than Emerson Valley would find it
straightforward to access the pharmacy at its new location by using the main roads in the
area.
8.15
The Committee also concluded that for all those patients who visited the Whaddon
surgery before visiting the pharmacy or who lived to the south of Standing Way, the
pharmacy at its proposed location would be more accessible.
8.16
The Committee accepted that whenever a pharmacy relocated there would be those
who were inconvenienced by the move. The Committee were mindful of the wording of
the regulation and the need to consider whether or not patient groups accustomed to
accessing the pharmacy at its current location would find the new location significantly
less accessible and concluded that only a small proportion of patients within the patient
groups in question would be inconvenienced by the proposed move and that such
inconvenience as was occasioned could not be described as significant.
8.17
The Committee accepted that following the relocation the applicant’s pharmacy could
well attract a higher number of prescriptions thus taking some business from other local
pharmacies but that this was not a matter to be considered under regulation 24 (1) (a).
8.18
The Committee next went on to consider criteria (b) and (c) of regulation 24. It had
been suggested on behalf of Cox and Robinson Limited that the viability of other
pharmacies could be threatened and the stability of the pharmacy network put at risk if
the applicant moved into the proposed premises and that this could cause a significant
change to the arrangements for the provision of pharmaceutical services in the area. No
further evidence of this had been provided.
8.19
NHS England had stated in its decision that for patients in Emerson Valley and
Tattenhoe the relocation “would result in a significant change in the provision of
pharmaceutical services and would result in the removal of pharmaceutical services from
their immediate areas”. The Committee concluded that it was a necessary feature of any
relocation that there would be some changes but did not accept that any changes to the
arrangements for the provision of pharmaceutical services consequent to the granting of
the current application would be significant.
25
8.20
It had also been put forward on behalf of Cox & Robinson Limited that granting the
application would undermine the decisions in previous appeals relating to the applicant’s
pharmacy and that this would thereby cause a significant change to the arrangements for
the provision of pharmaceutical services. The Committee could not accept this assertion.
It accepted that the current provision had been set as a result of the application of
previous regulations but that the Committee was constrained to consider the current
application under a different regulatory regime. In particular the Committee considered
that under the current regulations there was no requirement to investigate
neighbourhoods or neighbourhood boundaries as previously defined by the Regulations
but rather a need to assess the ease with which the patient groups accustomed to
accessing pharmaceutical services at the current location could access such services at
the proposed location.
8.21
The Committee was of the opinion that granting the application would not result in a
significant change to the arrangements that are in place under the provisions of criteria
(b).
8.22
No evidence of any planning as mentioned in criteria (c) had been submitted and
neither NHS England or any other party had attempted to argue that there would be
significant detriment to proper planning should the application be granted.
8.23
The Committee was not of the opinion that the application would cause significant
deteriment to proper planning in accordance with criteria (c) The Committee finally
considered criteria (d) and (e). The Committee noted the assurance given in the case
papers by the applicant that the applicant would provide the same services as are
currently available at the existing premises and that there will be no interruption of service
provision. That assurance had not been disputed by NHS England or any other parties.
The Committee therefore determined that criteria (d) and (e) had been met
8.24
In those circumstances, the Committee determined that the decision of NHS England
must be quashed.
8.25
The Committee went on to consider whether there should be a further notification to
the parties to allow them to make further representations (in which case it would be
appropriate to remit the matter to NHS England) or whether it was preferable for the
Committee to redetermine the application.
8.26
The Committee noted that representations on Regulation 24 had already been made
by parties to NHS England, and these had been circulated and seen by all parties who
made representations on the application, as part of the processing of the application by
NHS England. The Committee further noted that when the appeal was circulated
representations had been sought from parties on Regulation 24 and that parties had been
made aware of the amendments to the 2013 Regulations and had been asked to
comment upon them.
8.27
The Committee concluded that further notification under paragraph 19 of Schedule 2
would not be helpful in this case.
9
Decision
9.1 The Committee concluded that it was not required to refuse the application under the
provisions of Regulation 31
9.2 Having taken the above matters into account and for the reasons given above the
Committee is satisfied that 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.
9.3 The Committee unanimously quashes the decision of NHS England and redetermines the
application.
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9.4 The Committee has determined that criteria (a), (b), (c), (d) and (e) are satisfied.
9.5 The Committee allows the application.
Chairperson
Dated this 5th day of November, 2014
A copy of this decision is being sent to:
Mr A S Tosar - Rainbow Pharmacy-Applicant/Appellant
Ms S York - NHS England
Mr N Wardle - Charles Russell LLP on behalf of Cox & Robinson (Chemists) Ltd
Mr M Cox - Lloyds Pharmacy Ltd
Mr P M Patel – Smiths Pharmacy