Assura Pharmacy Ltd, R (on the application of) v E Moss Ltd (t/a Alliance Pharmacy)

Under the pharmaceutical-services control-of-entry regime, the decision-maker must assess the necessary-or-desirable test in the round. The statutory factors concerning reasonable choice of services and providers must be considered, but they are not determinative and carry no prescribed weight. Even limited or absent provider choice may coexist with adequate pharmaceutical provision. Questions of adequacy, need and desirability are ordinarily matters of fact and degree for the specialist decision-maker. A decision must be read straightforwardly, and its reasons need address the principal issues without rehearsing every consideration. Non-statutory guidance should normally be taken into account; a radical departure may require explanation. Courts should avoid imposing a judicial gloss on the statutory decision-making framework.

Assura applied for admission to the pharmaceutical list for proposed pharmacies in Todmorden and Freckleton. The relevant Primary Care Trusts refused the applications, and the Pharmacy Appeals Committee of the National Health Service Litigation Authority dismissed Assura’s appeals.

On judicial review, HH Judge Hickinbottom refused to quash the Todmorden decision but quashed the Freckleton decision. Assura appealed in relation to Todmorden. The NHSLA cross-appealed in relation to Freckleton. The central issues were the construction and application of the reasonable-choice provisions in regulation 12(2)(b) of the National Health Service (Pharmaceutical Services) Regulations 2005, and the adequacy of the reasons given by the decision-makers.

1. Disposition. Assura’s appeal concerning Todmorden was dismissed. The NHSLA’s appeal concerning Freckleton was allowed.
2. Statutory approach. Regulation 12(2) identifies matters to which the decision-maker must have regard when applying the necessary-or-desirable test. The factors in regulation 12(2)(b)(i) and (ii), concerning services and persons on the pharmaceutical list, are not determinative and have no fixed weight. The issue of reasonable choice is assessed compendiously, although the decision-maker must have regard to both the services available and the persons from whom they may be obtained. Even limited or absent choice can be outweighed by the other relevant factors, so that provision remains adequate.
3. Todmorden. The PAC was entitled to consider the two pharmacies’ separate management when evaluating choice of services, without treating them as different persons for the statutory purpose. It addressed the complaint that both pharmacies had the same operator and was entitled to conclude that Assura had not shown that its proposed pharmacy would provide services not already provided or capable of being provided. The PAC’s reasoning was legally adequate.
4. Freckleton. The Panel’s report, read fairly as a whole, showed that it had considered choice, including the availability of services in Freckleton and Kirkham. The PAC separately engaged with the issue by considering whether the Kirkham pharmacies were a reasonable alternative within the neighbourhood. The reasons were therefore sufficient, and the judge had applied an overly legalistic reading.
5. General guidance. Decision letters should be read in a straightforward, down-to-earth way. Questions of adequacy, need and desirability are fact-and-degree assessments for the decision-maker. The absence of express mention of a factor does not necessarily show that it was ignored. Non-statutory guidance may be relevant where the decision-maker radically departs from it and fails to explain that departure. The court declined to add judicial gloss to the statutory framework.
6. Judicial views. Lawrence Collins LJ gave the leading judgment. Sedley LJ agreed with the result, expressed concern about the practical effect of the regime on competition, and reserved the question of how an independent tribunal should treat departmental guidance given otherwise than under statutory authority. Laws LJ agreed with Lawrence Collins LJ.

• Court of Appeal (Civil Division): Assura’s Todmorden appeal was dismissed and the NHSLA’s Freckleton appeal was allowed.
• Administrative Court: HH Judge Hickinbottom refused to quash the Todmorden decision but quashed the Freckleton decision.
• Pharmacy Appeals Committee: Appeals against the relevant Primary Care Trust decisions were dismissed.