Bestway National Chemists Ltd (t/a Well Pharmacy), R (On the Application Of) v The Welsh Ministers

The claimant sought judicial review of the Welsh Ministers' decision of 18 August 2016 which, on appeals from determinations of the Cwm Taf University Health Board, refused the relocation of existing pharmacies from Merthyr town centre and allowed an application to include an additional pharmacy at Keir Hardie Health Park. The decision was made under the National Health Service (Pharmaceutical Services) Regulations 1992 (in particular regulation 4(4) and the appeals procedure in regulation 8) and against the statutory backdrop of the National Health Service (Wales) Act 2006 (section 1 and section 80).

Key legal principles and holdings:

• The decision-maker must assess whether granting an application is "necessary or desirable" to secure adequate provision in the relevant neighbourhood (Regulation 4(4)), having regard to effect on services to patients rather than contractors (Welsh Health Circular guidance).
• The court will review whether the decision was irrational, based on no evidence, or founded on immaterial considerations and whether adequate reasons were given (applying the authorities on adequacy of reasons and adducing post-decision evidence).
• The Welsh Ministers' conclusions were held to be rational and based on evidence and permissible inferences: they were entitled to take account of an increase in demand across the Board area as a legitimate part of assessing local need, to consider the effect on opening hours and accessibility if a town-centre pharmacy were relocated, and to prefer the additional inclusion of Dowlais because it did not reduce existing provision.

The claim was dismissed; the court also refused permission on the additional amended ground that the Welsh Ministers had failed to have regard to additional cost, since the Ministers had in fact considered cost and the ground was not arguable.

This is a judicial review at first instance of a Welsh Ministers' decision dated 18 August 2016 which allowed an application by Dowlais Pharmacy to be included in the pharmaceutical list to provide services at Keir Hardie Health Park, and which overturned a Local Health Board decision that had permitted the Co-operative to relocate its Newmarket Walk pharmacy to the Health Park. The claimant (now trading as Well Pharmacy) sought to challenge the Ministers' approach to overprovision in the town centre of Merthyr Tydfil and additionally alleged a failure to have proper regard to additional costs to the National Health Service from admitting an extra pharmacy.

Background and procedural history:

• Local facts included relocation of general medical services from the Hollies Health Centre in Merthyr town centre to Keir Hardie Health Park (around late 2012), and four related pharmaceutical applications made in 2012.
• The Local Health Board granted the Co-operative's relocation but refused Boots and Dowlais; appeals were taken to the Welsh Ministers. An earlier Welsh Ministers decision of 12 September 2013 was quashed by consent order on 5 November 2014; the appeals were reheard by an oral hearing panel in May 2015 and the panel reported in October 2015. The Welsh Ministers issued the decision under challenge on 18 August 2016.

Nature of the claim and relief sought:

The claimant applied for judicial review seeking to quash the Welsh Ministers' decisions on grounds that included: (1) misdirection in law in using Board-wide evidence of increased demand when assessing overprovision in the Newmarket Walk neighbourhood; (2) taking into account immaterial considerations or reaching findings on no evidence about overprovision; and (3) failing to give lawful reasons for concluding there was no overprovision in the Newmarket Walk neighbourhood. An amended ground sought permission to argue the Ministers failed to have regard to additional NHS costs of admitting an extra pharmacy.

Issues for determination:

1. Whether the Welsh Ministers erred in law, acted irrationally or on no evidence, or gave inadequate reasons in concluding there was not overprovision in the Newmarket Walk neighbourhood.
2. Whether it was arguable that the Welsh Ministers failed to have regard to additional costs to the NHS and, if so, whether that amounted to unlawful decision-making requiring a remedy.

Court's reasoning and conclusions:

• The court held the Ministers legitimately concluded that a pharmacy at the Health Park was "desirable" given the transfer of GP services and the registration of approximately 14,500–15,000 patients at the Health Park; it was open to Ministers to accept that a proportion of the Board-wide increase in prescriptions would relate to Merthyr and the Newmarket Walk neighbourhood.
• The Ministers properly weighed accessibility and hours of opening (noting potential loss of extended weekend and later weekday hours if a town-centre pharmacy relocated) and correctly applied the Welsh Health Circular emphasis on the effect on services to patients.
• The Ministers' choice to permit Dowlais (an additional pharmacy) because it would not reduce existing provision in the town centre was rational and supported by the evidence and the panel report; the Ministers did not rely on immaterial considerations and gave adequate reasons on the principal issues.
• On the amended cost ground, the court found the Ministers had been made aware of and had considered potential additional costs (the solicitor's skeleton argument and the panel report recorded the point) and so the ground was not arguable; the court also observed that even if reasons on cost had been brief, additional evidence from the decision-maker would merely elucidate rather than contradict the decision letter and that the outcome would not have been substantially different.

The claim for judicial review on the permitted grounds was dismissed and the amended ground about failure to consider additional cost was refused permission as not arguable.

The claim is dismissed. The court held that the Welsh Ministers acted lawfully and rationally in concluding that it was desirable to permit a pharmacy at Keir Hardie Health Park and in preferring the Dowlais application because it would not reduce existing provision; the Ministers were entitled to have regard to a Board-wide increase in demand as part of assessing neighbourhood need, to consider effects on accessibility and opening hours, and they had regard to cost arguments raised so the additional cost ground was not arguable.

The Local Health Board granted the Co-operative's relocation but refused Boots and Dowlais. The Welsh Ministers initially allowed appeals (decision dated 12 September 2013) but that decision was quashed by consent order on 5 November 2014. The appeals were reheard at an oral hearing on 5 May 2015 (panel report October 2015) and the Welsh Ministers issued the decision under challenge on 18 August 2016.