“that, except in prescribed cases… - (i) an application for inclusion in such a list by a person not already included and (ii) an application by a person already included in such a list for inclusion also in respect of services or premises other than those already listed in relation to him, shall be granted only if the [PCT is] … satisfied in accordance with the regulations, that it is necessary and desirable to grant it in order to secure in the neighbourhood in which the premises are located the adequate provision by persons included in the list of services, or some of the service provided in the application”
“(1) …[A]n application shall be granted by the [PCT] only if it is satisfied that it is necessary or desirable to grant the application in order to secure, in the neighbourhood in which the premises from which the applicant intends to provide the services are located, the adequate provision, by persons included in a pharmaceutical list, of the services, or some of the services, specified in the application (‘the necessary or desirable test’)”
“If the provision [of pharmaceutical services] were inadequate, it would simply be necessary to make it up by granting the application. If it were adequate, the application would have to be refused.”
“13. Regulation 4(4) has, I think, caused difficulty, and in consequence given rise to much litigation, because its terms invite the decision-maker to make not one but (potentially at least) a series of value judgments; and because of the antithesis between ‘necessary’ and ‘desirable’, it is by no means entirely clear what is the relationship between the various possible judgments which may (depending upon the facts) fall to be made.”
“8. … Thereafter, in our opinion, the decision-maker must approach an application in two stages. First, it must consider whether the existing provision of pharmaceutical services in the relevant neighbourhood is adequate. If it decides that such provision is adequate, that is the end of the matter and the application must fail. If it decides that such provision is not adequate, it must go on to consider a second question: whether the provision of pharmaceutical services at the premises named in the application is “necessary or desirable” in order to secure adequate provision. We consider that such a two-stage approach is inherent in the logical structure of Regulation 5(10). The fundamental criterion against which the application is to be judged is the adequacy of pharmaceutical services in the relevant neighbourhood. A deficiency in those services must exist before an application can be granted. Consequently the existence of such a deficiency must be identified before it is necessary to consider what may be done to provide a remedy. The second question relates to the manner in which an identified deficiency is remedied.”
“9. In relation to the first question, we are of opinion that ‘adequacy’ is a simple concept, in the sense that there is no room for different degrees of adequacy, or a spectrum of adequacy. Either the pharmaceutical services available in the neighbourhood are adequate or they are not. That seems to us to be inherent in the ordinary meaning of the word, which denotes a sufficiency for a particular purpose, in this case the provision of pharmaceutical services in the relevant neighbourhood. The standard of adequacy is a matter for the decision-maker, whether that is the Pharmacy Practice Committee or the National Appeal Panel [the decision-making equivalents of the PCT and PAC, in Scotland]. In either case, the decision-maker is a specialist tribunal, and can be expected to apply its knowledge of the pharmaceutical business to the task of determining the appropriate standard. 10. The question that the decision-maker must address is the adequacy of the existing provision to serve the neighbourhood in question. In addressing that question, however, it is in our opinion proper to have regard to probable future developments, for two reasons. First, the standard of adequacy in a particular neighbourhood will obviously change with time. The relevant neighbourhood may change, for example through the construction of new housing developments or the movement of population out of inner-city areas. Likewise changes inevitably occur in pharmaceutical practice, and the standard of “adequate” pharmaceutical provision must accordingly develop over time. The proposal under consideration may well provide an illustration of how pharmaceutical practice is developing, and may be relevant to show what sort of provision is possible in the neighbourhood. We are in full agreement with the Lord Ordinary that changes in pharmaceutical practice should be taken into account by the decision-maker. Secondly, Regulation 5(10) uses the word ‘secure’ in relation to the adequate provision of pharmaceutical services. That word seems to us to indicate that the decision-maker can look to more than merely achieving a bare present adequacy of pharmaceutical provision. ‘Secure’ suggests that it should be possible to maintain a state of adequacy of provision into the future. That indicates that the decision-maker must have some regard to future developments, in order to ensure that an adequate provision can be maintained. The decision-maker must, however, determine the adequacy of the existing provision of pharmaceutical services at a specific time, the time of its decision. It must accordingly reach its conclusion on the adequacy of the existing provision on the basis of what is known at that time, together with future developments that can be considered probable rather than speculative. The decision-maker must also bear in mind that the critical question at this stage of its reasoning is the adequacy of the existing provision, not the adequacy or desirability of some other possible configuration of pharmaceutical services in the neighbourhood. 11. If the decision-maker determines that the existing provision of pharmaceutical services in the relevant neighbourhood is inadequate to meet the needs of the neighbourhood, it must go on to consider the question of how the deficiency can be remedied. It is at this point that it must consider whether the proposal in the application is “necessary or desirable in order to secure adequate provision of pharmaceutical services in the neighbourhood”
“A balancing exercise has to be carried out with the question at the forefront - is the accommodation adequate for the needs of the disabled children in the circumstances which persist at that moment in time?” (at Paragraph 60, per Waller LJ). Closer to the wording of the statutory provisions which are pertinent in the case before me, in R (Gosforth Allotments & Garden Association) v Secretary of State for the Environment (1996) 72 P&CR D38, the court considered “adequate provision” underSection 8 of the Land Settlement Facilities Amendment Act 1925 . Under that section, the Secretary of State shall not give an authority consent to sell etc an allotment unless he is satisfied that “adequate provision” is made for the displaced allotment holders. Although the issues raised were different from those in this case (as it was there argued that “adequate provision” was a reference to the standard of facilities the allotment holders had previously enjoyed), the court held that the issue was “more naturally answered by reference to the allotment holders’ reasonable needs”
“whether the recipients of pharmaceutical services already have a reasonable choice with regard to - (i) the pharmaceutical services or directed services provided in the neighbourhood in which the premises named in the application are located, by persons included in a pharmaceutical list, and (ii) the persons included in a pharmaceutical list from whom such recipients may obtain pharmaceutical services or directed services in the neighbourhood in which the premises named in the application are located;…”
“whether the recipients of pharmaceutical services already have a reasonable choice [of pharmaceutical services having regard to] (i) the pharmaceutical services or directed services provided in the neighbourhood…and (ii) the persons included in the pharmaceutical list from whom such recipients may obtain pharmaceutical services or directed services in the neighbourhood….”
“Having come to that conclusion, the panel felt that it did not have to make a specific finding as to whether or not there was an adequate choice of pharmaceutical services to hose within the neighbourhood, as suggested by Mr Daly on behalf of the [Claimants]. Choice, one of a number of considerations that the panel has to take into account when assessing whether or not there is an existing adequacy of pharmaceutical service. Having concluded that the vast majority of residents of Freckleton obtained the medical and pharmaceutical services at the new health centre, and that those who did not would obtain them in Kirkham or wherever else they lived, then in all within the proposed neighbourhood had an adequate provision of pharmaceutical service. Even if they lived outside Freckleton, the likelihood is that they would travel by car or public transport and therefore be able to access pharmaceutical services on their way to or from Freckleton, if they did not wish to obtain the service in Freckleton.”
“However, the Committee did not consider the pharmacies in Kirkham to provide a reasonable alternative within the neighbourhood. The Committee recognised that the indicators were that the majority of Freckleton had privately owned properties, thereby no real issues of deprivation, and that the information available did not indicate an issue of access for that population when in the vicinity of the proposed site. The Committee accepts that there is a potential gap for this population however insufficient evidence had been adduced in order to render present pharmaceutical services inadequate.”
“The Committee had regard to Regulation 12(1), the necessary or desirable test, and in considering that test, had regard in particular to Regulation 12(2)…”
“Choice is part of the test of adequacy although not a separate test. Regulation 12(2) of the 2005 Regulations asked whether or not there is a reasonable choice of pharmaceutical services within the neighbourhood proposed. Mr Daly suggested to the panel that if one thought of where one lived (e.g. Freckleton) where there was a pharmacy within the health centre and another pharmacy outside that health centre closed, then the neighbourhood was left with one pharmacy only and within the health centre. Question therefore did that give the reliant population a choice of pharmaceutical services? Mr Daly thought it did not.”
“… [R]eference is made to choice in the neighbourhood. This is only part of the necessity/desirability criteria that the panel had to consider and he pointed out that the choice must be reasonable not just “choice”
“Having come to that conclusion, the panel felt that it did not have to make a specific finding as to whether or not there was an adequate choice of pharmaceutical services to those within the neighbourhood, as suggested by Mr Daly on behalf of the [Claimants]. The criticism of this is not that the panel failed to make “a specific finding” in relation to whether there was an adequate choice of services - there is no obligation for such a finding to be made, but only for regard to be had as to whether there is a reasonable choice of services. However, this passage reveals that their entire approach to choice was wrong. They effectively set out the correct approach in the next subparagraph of their report: “Choice, one of a number of considerations that the panel has to take into account when assessing whether or not there is an existing adequacy of pharmaceutical service…” but, unfortunately, they patently did not take this approach. Having assessed the provision of services as being very good, they appear to have considered it unnecessary to take choice into account at all, and certainly appear not in fact to have taken it into account. That appears from the positioning of the reference to choice (after their conclusion that existing provision was “totally adequate”): from Paragraph 8.4: and from what immediately follows the reference to choice. In the succeeding passage, there is no reference to choice except possibly a reference to those who worked in (but lived outside) Freckleton being able to access pharmaceutical services on their way to and from work, “if they did not wish to obtain services in Freckleton”
“5.11 The PCT’s decision letter stated that there was no indication that existing pharmacies are unable to meet demand for services. That ‘it is possible they would struggle should there be a major increase in demand for services’ appeared to be a matter for speculation. The [PAC] was aware of the applicant’s suggestion on appeal, that transfer of dispensing patients from doctors dispensing list following the [PAC] decision that nearby Cornholme and Walsden are no longer controlled localities, and regeneration in Todmorden will increase demand for pharmaceutical services. The applicant has referred to views said to be expressed by Todmorden Town Council to the PCT, that pharmaceutical services are already ‘stretched’. The [PAC] having regard to the above statements was provided with no information to demonstrate that existing pharmacies are unable to meet present demand or would be unable to cope with increased demand for services. 5.12 The [PAC] noted a central issue of the appeal was the perceived lack of choice of pharmaceutical services and service provider, given that both existing pharmacies in the neighbourhood are operated by [Alliance]. Whilst the PCT’s decision letter had suggested there is a ‘question of choice’ it was also acknowledged that both pharmacies are under separate management and made separate decisions. The [PAC] was mindful that ‘reasonable choice’ does not override the necessary or desirable test of securing adequacy. The Regulations do not indicate that choice cannot be secured where pharmacies are operated by the same company. Should there be any reason to believe that there was any inadequacy of services linked to both existing pharmacies being owned by the same company, there could potentially be grounds for granting the application. This was not the case here. The [PAC] had no reason to believe that the population do not have a reasonable choice of service and service provider available to them. 5.13 … The [PAC] had no reason to believe that because one pharmacy provides services that the other may not, there was a need for additional services to secure adequacy.”
“The [PAC] having regard to the above statements was provided with no information to demonstrate that existing pharmacies are unable to meet present demand or would be unable to cope with increased demand for services”
“In finding that it had ‘no’ reason to find that the population did not have a reasonable choice of service and service provider when in fact there was only one service provider with two premises/contracts providing services to the neighbourhood the [PAC] failed to deal with the issue of choice as introduced by the 2005 Regulations or at all.”
“[PCTs] should assess the extent to which there is a reasonable choice of providers of services in a neighbourhood. For example, a neighbourhood with one provider but a high demand for diverse or more accessible services which are not being met may benefit from an additional provider of services who can cater for these needs. This may be an existing provider seeking to expand his business. Alternatively, it could be a brand new provider where an existing provider is unable to expand his current range of services to meet these needs.”
“… The [PAC] had no reason to believe that because one pharmacy provides services that the other may not, there was a need for additional services to secure adequacy.”
“The [PAC] had no reason to believe that the population do not have a reasonable choice of service and service provider available to them.”
“The [PAC] noted [Assura’s] claim that their application had offered to provide the same opening hours on Saturday as [Canterbury] albeit the former’s were listed as ‘proposed hours’. It is a fact that the core contractual hours offered by [Canterbury] included Saturday mornings. The [PAC] noted the PCT’s undisputed reference to the PCT’s [PNA], which it was said had indicated concern over ‘the relative lack of Saturday opening hours’. The [PAC] considered that the opening hours of [Canterbury] should be preferred as to alter these would require permission from the PCT whereas non-core hours only required 90 days’ notice of alteration. Their application would meet a gap identified in the PNA…”
“The Committee [this is a reference to the PCT, as it is in the section dealing with the PCT decision], aware that the PNA and the PCT had identified the relative lack of Saturday opening hours as a matter of concern, agreed that the [Canterbury] application be approved and the [Assura] application be refused.”
“The sole ground upon which the Claimant asks this Court to quash the decision is that the [PAC’s] decision was based upon a mistake as to existing fact, which gave rise to unfairness. The mistake made was that the [PAC] wrongly assumed that a Pharmaceutical Needs Assessment (“PNA”) had indicated concern over the relative lack of Saturday opening hours. It had not done so. That mistake led to unfairness because a material reason given by the [PAC] in refusing the Claimants’ application and allowing Canterbury’s was that Canterbury’s application would more certainly meet the gap as to Saturday opening hours allegedly identified in the PNA”
“63. In our view, [R (A) v Criminal Compensation Board][1999] 2 AC 330 points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between ‘ignorance of fact’ and ‘unfairness’ as grounds of review. However, we doubt if there is any real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that ‘objectively’ there was unfairness. On analysis, the ‘unfairness’ arose from the combination of five factors: (i) an erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); (ii) the fact was ‘established’, in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; (iii) the claimant could not fairly be held responsible for the error; (iv) although there was no duty on the Board itself, or the police, to do the claimant’s work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result; (v) the mistaken impression played a material part in the reasoning. 64. If that is the correct analysis, then it provides a convincing explanation of the cases where decisions have been set aside on grounds of mistake of fact. Although planning enquiries are also adversarial, the planning authority has a public interest, shared with the Secretary of State through his inspector, in ensuring that development control is carried out on the correct factual basis… The same thinking can be applied to asylum cases… [The Secretary of State] has a shared interest with the appellant and the tribunal in ensuring that decisions are reached on the best information. It is in the interests of all parties that decisions should be made on the best available information… 65. …. 66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without laying down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.”
“Although planning enquiries are also adversarial, the planning authority has a public interest, shared with the Secretary of State through his inspector, in ensuring that development control is carried out on the correct factual basis.”
“The Committee, aware that the PNA and the PCT had identified the relative lack of Saturday opening hours as a matter of concern, agreed that the [Canterbury] application be approved and that the [Assura] application be refused.”