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

When assessing a pharmacy relocation, “patient groups” under regulation 24(1)(a) of the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 are practical groupings of existing users identified by factors relevant to accessibility. They need not be organised groups or groups sharing clinical characteristics.

Accessibility is broad. It may include physical, mental and social ease of access, as well as distance and geography. The applicant bears the burden of satisfying the decision-maker that the new premises are not significantly less accessible. The statutory test is applied group by group. A single material patient group being significantly adversely affected is sufficient; no balancing exercise across all groups is required.

The claimant sought judicial review of an appeal decision refusing permission to relocate a pharmacy from a city-centre shopping centre to premises approximately 600 metres away. Regulation 24(1)(a) permitted relocation only if, for patient groups accustomed to using the existing premises, the new location was not significantly less accessible.

The claimant challenged the decision on four grounds. It argued that “patient group” referred to organised or clinically defined groups, that the wrong groups had been considered, that the statutory test had not been applied to public-transport users and disabled patients, and that the committee should have balanced the effects on different groups. It also argued that privately supplied emergency hormonal contraception was outside the relevant NHS pharmaceutical services.

1. The claim was dismissed on all grounds. The committee had not erred in law in identifying shoppers, workers, transport users, disabled patients and women seeking NHS-related contraceptive advice as relevant patient groups.
2. “Patient group” had to be construed in the context of regulation 24(1)(a), the 2013 Regulations and the wider statutory scheme. The expression was not confined by the use of “patient, consumer or community group” elsewhere in the Regulations, nor by the meaning of patient group directions under different legislation. The ejusdem generis principle could not import a limitation from one context into another.
3. The purpose of grouping was to facilitate a broad and practical assessment of accessibility. Groups could be identified by local circumstances, methods of travel, starting point, demography, disability, care-home residence or deprivation. Overly small or numerous groups should be avoided where they obscure the overall picture, but the assessment remained group by group.
4. Accessibility was not limited to geography. The decision-maker could consider distance, gradients, weather protection, routes, anti-social behaviour and other physical, mental or social features affecting ease of access. If one material patient group would find the new premises significantly less accessible, regulation 24(1)(a) was not satisfied. The statute did not require adverse effects on different groups to be balanced.
5. The claimant bore the evidential burden. The committee was entitled to draw reasonable inferences from the evidence, its specialist knowledge and its inspection of the premises. It had addressed the “significantly less accessible” test and was entitled to consider NHS advice and signposting connected with emergency hormonal contraception, while excluding private dispensing itself from the relevant NHS service.
6. The court also held that relief would have been refused in any event on the patient-group argument. Judicial review relief is discretionary. Relevant considerations included the nature and importance of the flaw, the claimant’s conduct and the effect on public administration. A claimant should not ordinarily obtain relief by arguing that a tribunal erred by adopting the very legal approach the claimant had urged upon it.

First-instance judicial review proceedings. The judgment describes an appeal to the Family Health Service Appeal Unit of the NHS Litigation Authority, which upheld the refusal of the relocation application. The High Court dismissed the subsequent judicial review claim.