The Pharmaceutical Services Negotiating Committee & Anor, R (On the Application Of) v Secretary of State for Health

A public decision-maker must take reasonable steps to acquaint itself with relevant material, but the extent and intensity of inquiry remain matters for the decision-maker, subject to rationality review. Consultation must be fair and provide sufficient information for an intelligent response. Non-disclosure is unlawful only where it causes material unfairness. Statutory duties to have regard require genuine and proper consideration of the specified matters; the distinction between having regard and having due regard is not, in itself, decisive. Where the statutory duties leave the decision-maker a broad evaluative judgment, the court intervenes only on established irrationality. The need to make financial savings does not prevent lawful reductions where relevant effects, including access and equality impacts, have been considered.

Two joined judicial review claims challenged reductions in the remuneration of community pharmacies providing NHS pharmaceutical services. The Pharmaceutical Services Negotiating Committee was a statutory consultee and alleged an unfair consultation, failure to obtain relevant information and failure to disclose material analysis. The National Pharmacy Association supported those grounds and additionally alleged breaches of the duty to reduce health inequalities under section 1C of the National Health Service Act 2006 and the public sector equality duty under section 149 of the Equality Act 2010.

The challenged package reduced remuneration, altered the payment structure and introduced the Pharmacy Access Scheme. The central issues were whether the Secretary of State had complied with the Tameside duty and consultation requirements, and whether the statutory equality and health-inequality duties had been lawfully discharged.

1. The claims were dismissed. The Secretary of State had power under sections 164 and 165 of the National Health Service Act 2006 and regulation 89 of the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 to alter the remuneration arrangements through the Drug Tariff.
2. The Tameside duty required reasonable steps to obtain information needed for a lawful decision. Under section 165(9), however, the Secretary of State was the primary judge of relevance, and the manner and intensity of inquiry were subject to Wednesbury review. The failure to obtain a more reliable estimate of pharmacy closures was not irrational. The cost and limited practical value of further inquiry could reasonably be taken into account.
3. Consultation had to be fair and sufficiently informative to permit intelligent consideration and response. The Department should have disclosed the analysis underlying the 15 per cent operating-margin figure, and its failure to do so was regrettable and unjustified. Nevertheless, the disclosure would not have altered the consultation or outcome. The failure therefore did not amount to unlawful unfairness.
4. The duty under section 1C of the National Health Service Act 2006 required recognition of the need to reduce health inequalities and proper consideration of whether the proposal would increase them. The court rejected the submission that “have regard” imposed materially less than “due regard” under section 149 of the Equality Act 2010.
5. The Secretary of State had considered access to pharmaceutical services, the effects of closures, pressures on GPs and accident and emergency departments, deprivation, and the protective effect of the Pharmacy Access Scheme. His conclusion that the package would not irrationally exacerbate inequalities, or breach the public sector equality duty, was available to him. The court could not substitute its view that another package might have been preferable.
6. The reductions were imposed to achieve required savings. Although a reduction in pharmacy numbers was regarded as a desirable possible consequence, that did not establish an improper purpose.

First-instance judicial review claims determined by the High Court (Administrative Court). No prior appellate decision is stated in the judgment.