R Bestway National Chemists Ltd (trading as Well Pharmacy) v The Welsh Ministers Boots UK Ltd and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Lewis |
| Judgment Date | 31 July 2017 |
| Neutral Citation | [2017] EWHC 1983 (Admin) |
| Date | 31 July 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5840/2016 |
[2017] EWHC 1983 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
The Civil Justice Centre, Cardiff
The Honourable Mr Justice Lewis
Case No: CO/5840/2016
David Lock Q.C. (instructed by Knights 1759) for the Claimant
Tom Cross (instructed by the Legal Services Department of the Welsh Government) for the Defendant
Joanne Clement (instructed by Gabb & Co Solicitors) for the Second Interested Party
The first interested party did not appear and was not represented.
Hearing dates: 15 June 2017.
Approved Judgment
INTRODUCTION
This is a claim for judicial review of a decision dated 18 August 2016 of the Welsh Ministers allowing appeals by the interested parties against decisions of the Cwm Taf University Health Board ("the Board"). The Board had considered applications from the Co-operative Pharmacy ("the Co-operative"), whose pharmacies are now owned, or operated, by the claimant, Boots UK Ltd. ("Boots"), and Dowlais Pharmacy Limited ("Dowlais"), all of whom wished to provide pharmaceutical services from premises at the Keir Hardie Health Park ("the Health Park") in Merthyr Tydfil. The applications by the Co-operative and Boots involved the relocation of pharmacies from existing premises in the town centre of Merthyr. The application by Dowlais involved the inclusion of Dowlais on the pharmaceutical list for the purposes of providing pharmaceutical services from new premises in the Health Park. The Board had granted the Co-operative's application and refused the applications of Dowlais and Boots.
The Welsh Ministers allowed appeals against the Board's decisions and granted the application by Dowlais and refused the applications by the Co-operative and Boots. As a result, Dowlais would be able to operate a pharmacy at the Health Park but the Co-operative (and Boots) could not.
In essence, the claimant contends that the Welsh Ministers erred in their approach to the question of whether there was an overprovision of pharmaceutical services in the town centre of Merthyr Tydfil when deciding to grant Dowlais' application for a new pharmacy at the Health Park rather than permitting the Co-operative to relocate its existing pharmacy at 18 Newmarket Walk, Merthyr Tydfil, to the Health Park or failed to give any, or any lawful, reason for its conclusion on that matter. Permission to claim judicial review on the three grounds arising from these matters had been granted prior to the hearing. The claimant also sought permission to apply for judicial review on an additional ground, namely that the Welsh Ministers failed to have regard to a factor that they were required to have regard to, that is the additional costs to the National Health Service in Wales of permitting Dowlais to be included in the pharmaceutical list.
THE LEGAL FRAMEWORK
Section 1 of the National Health Service (Wales) Act 2006 ("the Act") provides that the Welsh Ministers "must continue the promotion in Wales of a comprehensive health service". Section 80 of the Act requires each Local Health Board in Wales to make arrangements, in accordance with regulations made by the Welsh Ministers, for the provision of sufficient drugs, medicines and appliances.
The relevant regulations applicable to these applications are the National Health Service (Pharmaceutical Services) Regulations 1992 ("the Regulations"). Regulation 4 of the Regulations provides for a list of persons (other than doctors and dentists) who provide pharmaceutical services. The list contains the addresses of the premises from which services may be dispensed and the hours and days when the premises are open. The Regulations make provision for applications for the inclusion of persons in the pharmaceutical list, to provide services from additional premises and to relocate premises (see regulation 4(2)(a) and (b) of the Regulations).
Regulation 4(4) of the Regulations provides that:
"An application … shall be granted by the Local Health Board only if it is satisfied that it is necessary or desirable to grant the application in order to secure, in the neighbourhood in which the premises from which the applicant intends to provide services are located, the adequate provision, by persons included in the list, of services specified in the application."
Regulation 6(7) of the Regulation permits a Board to consider two or more applications together.
Regulation 8 provides for an appeal against a decision of a Board to the Welsh Ministers. Regulation 8(5) requires appeals against the determination of applications which were considered together by the Board to be considered together. The Welsh Ministers may require an oral hearing before determining the appeal: see regulation 8(1) of the Regulations. The Welsh Ministers are required to notify the person in writing of the decision and to provide a statement of the "reasons for the decision and his findings of fact": see regulation 8(16) of the Regulations.
THE FACTS
The Applications
The background to the applications was the fact that general practitioners providing general medical services from Hollies Health Centre at Swan Street in the town centre of Merthyr Tydfil were to relocate to the Health Park which lies outside the town centre. That relocation took place in about October or November 2012.
In anticipation of that relocation, four applications were made between May and July 2012 seeking either inclusion in the pharmaceutical list with a view to providing pharmaceutical premises in the Health Park or a relocation of an existing pharmacy to the Health Park. The three applications material to this claim are the following:
(1) On 28 May 2012 Dowlais applied for inclusion in the pharmaceutical list to provide pharmaceutical services at the Health Park. This would involve permitting an additional pharmacy in addition to those already on the pharmaceutical list;
(2) On 13 June 2012, the Co-operative applied to the Board for permission to change its premises from 18 Newmarket Walk to the Health Park;
(3) On 27 July 2012, Boots applied to the Board for permission to change its premises from a location on the Cyfartha Retail Park to the Health Park
The Decision and the Appeals.
The applications were considered together and, by letters dated 10 October 2012, the Board granted the Co-operative's application but refused those of Boots and Dowlais. The two unsuccessful applicants appealed against the decisions to the Welsh Ministers. The appeals were initially considered and allowed, and the application of Dowlais granted and the others refused, by a decision of the Welsh Ministers dated 12 September 2013. That decision was the subject of a claim for judicial review and the decision was quashed by a consent order made on 5 November 2014.
The appeals were reconsidered. The Welsh Ministers required the appeals to be considered at an oral hearing by a panel comprising a legally qualified chairman, a pharmaceutical member and a lay member. The oral hearing took place on 5 May 2015 and the Co-operative was represented at that hearing by a solicitor. It prepared a written skeleton argument for the consideration of the panel. It appears that the Co-operative did not submit material such as evidence about the impact of the move of the Hollies medical practice to the Health Park on its pharmacy at 18 Newmarket Walk. It appears that others did submit information (see paragraph 2 of the report of the panel). In dealing with the appeal by Boots and Dowlais against the decision to grant the Co-operative's application, the solicitor made oral submissions on behalf of the Co-operative and was questioned by others.
The Report of the Panel
The panel reported to the Welsh Ministers in October 2015. Its report records the primary position taken by the Co-operative. It contended that there was:
"an overprovision in pharmaceutical services due to the relocation of the general medical services from the Hollies Health Centre, Swan Street to the Health Park. They submitted that granting their change of premises would redistribute pharmaceutical services in line with the medical services and meet the established need for a pharmacy in the neighbourhood under consideration."
The panel records the solicitor for the Co-operative as making essentially the same argument orally, namely that granting the Co-operative's application would secure better distribution of pharmacies consistent with the needs of the local population. He referred to the fact that there were two Co-operative pharmacies a few doors apart in the town centre, a Boots pharmacy opposite and a fourth relatively close by. He submitted that the clustering of pharmacies demonstrated a superfluity of pharmacies in the town centre. He contended that the needs of the population could be met by three not four pharmacies in the town centre. He confirmed that he was measuring whether there was overprovision in the town centre by the fact that there was a cluster of pharmacies there and that was more than was needed to meet the needs of the population of Merthyr Tydfil and secondly, that an additional pharmacy (which would be the result of granting the Dowlais application) would represent an additional cost to the taxpayer. He accepted that the additional cost could be met from the existing budget but said that whether that represented a good use of money was another question. See paragraphs 61 to 78 of the report of the panel. The point about the additional costs, with examples given of the additional costs which might be incurred (and which might amount to about £40,000) was also...
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