Boots the Chemist, R (on the application of) v The Family Health Services Appeal Authority

When competing applications are made to relocate pharmaceutical services, the statutory authority must determine whether the proposed relocation is necessary or desirable to secure adequate provision. Relevant non-statutory guidance should ordinarily be taken into account. Where applicants are otherwise equal, the application received first may be preferred, unless another deciding factor applies, such as one applicant’s possession or control, or likely control, of the premises.

The authority is required to decide the substance of the submissions and evidence actually placed before it. It need not make hypothetical assessments of cases not advanced. A procedural mistake will justify judicial review for unfairness only where the claimant was not responsible for it and it materially influenced the decision. The assessment of the factual evidence and rival contentions was for the statutory authorities.

Boots and Lloyds each applied to transfer pharmaceutical services to a proposed health centre in Biggleswade. The Primary Care Trust considered the applications equivalent and approved Lloyds’ application because it was received first.

On appeal, the Family Health Services Appeal Authority considered whether Boots had established a sufficiently strong position regarding control of the premises to displace the usual first-received approach. It dismissed the appeal, concluding that Boots had not secured a confirmed position over Lloyds.

Boots sought judicial review, alleging failure to apply the Department of Health guidance, irrationality and unfairness arising from the absence of a January 2004 letter. The central issues were whether the Authority had lawfully evaluated the evidence and whether the omitted letter caused procedural unfairness.

1. Judicial review dismissed. The Family Health Services Appeal Authority was entitled to conclude that Boots had not shown that it would control the proposed premises or that Lloyds had been excluded as a realistic rival.
2. Under regulation 4(4) of the National Health Service (Pharmaceutical Services) Regulations 1992, an application could be granted only where the authority was satisfied that the relocation was necessary or desirable to secure adequate provision of the relevant services. The Department of Health guidance was non-statutory but relevant and should ordinarily be considered.
3. Where competing applications were otherwise equal, paragraph 76 of the guidance permitted consideration in order of receipt unless another deciding factor existed. Control, or likely control, of the relevant premises could constitute such a factor. The Authority had addressed the substance of the competing submissions and applied that approach.
4. The Authority was not required to make hypothetical assessments of submissions which were not advanced. Boots had ample opportunity to provide evidence that Matrix Medical would deal only with Boots and not with Lloyds. Its failure to do so meant that the Authority was entitled to reject the claimed control of the premises.
5. The January 2004 letter merely confirmed the position stated in September 2003 and was not materially significant. Applying the principles summarised in E v Secretary of State for the Home Department [2004] QB 1044, there was no unfairness: Boots had responsibility for placing the letter before the Authority if it considered it significant, and its omission could not have materially formed part of the reasons for the decision.
6. The application was dismissed with costs assessed by agreement at £10,018.99 including VAT.

• Primary Care Trust: approved Lloyds’ application to relocate, treating the applications as equivalent and applying the first-received approach.
• Family Health Services Appeal Authority: dismissed Boots’ appeal on 22 April 2004, finding that Boots had not secured a confirmed position over the premises.
• High Court (Administrative Court): dismissed Boots’ judicial review claim and ordered payment of the defendant’s costs.