1 A summary of the application, decision, appeal and representations and observations are attached at Annex A.

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1 REF: SHA/18077 APPEAL AGAINST LONDON AREA TEAM, NHS COMMISSIONING BOARD ("NHS ENGLAND") DECISION TO REFUSE AN APPLICATION BY TAYZANA LIMITED FOR A RELOCATION THAT DOES NOT RESULT IN A SIGNIFICANT CHANGE TO PHARMACEUTICAL SERVICES PROVISION UNDER REGULATION 24 FROM 230 BRIXTON HILL, LONDON, SW2 1HG TO THE NEW PALACE ROAD SURGERY, ADJACENT TO 1A AND 1B PALACE ROAD, LONDON SW2 3DY 1 Trevelyan Square Boar Lane Leeds LS1 6AE Tel: Fax: fhsau@nhsla.com 1 A summary of the application, decision, appeal and representations and observations are attached at Annex A. 2 Site Visit 2.1 The Committee explained at the outset that they had travelled by taxi which did not have an odometer recording 1/10 of a mile and therefore any distances referred to were estimated. 2.2 The Committee travelled by car to a pharmacy at 108 Brixton Hill. This was a Day Lewis pharmacy which was not referred to in any of the material supplied but was close to the existing site. 2.3 The Committee noted that this pharmacy offered a healthcare clinic, smoking cessation and also a medicine review service. It was well served by buses 45, 59, 109, 118, 133, 159, 250, 333 and night services N109 and N133. It was open Monday to Friday 9 to 1 and 2 until It was situated in the middle of the shops which included grocers and launderettes, beauty salons, cost cutters, Nisa, and there were several empty shops, a post office and takeaway. There was also an empty antique shop. There was limited parking on the side streets and these bays were 20 minutes free or three hours free for disabled users. 2.5 The Committee travelled to the Brixton Group Surgery. It was estimated that the Day Lewis pharmacy at 108 Brixton Hill was 300 m from the Brixton Group Surgery. The entrance to this surgery is actually on Beechdale Road. There was free parking for up to 30 minutes. 2.6 The Committee then travelled by taxi to Upper Tulse Hill Road to the Vantage pharmacy. This was approximately 450 m slightly uphill. There was one disabled parking space nearby but parking would clearly be difficult given the limited number of spaces available.

2 2 2.7 The Vantage pharmacy is situated on a small row of shops. It offered pregnancy testing and healthcare services and stoma care. It was noted that there were various cut-throughs from the large housing estates surrounding the pharmacy. It seemed likely that these routes would be known to locals and were likely to be shorter than those travelled by the Committee who used the main road routes. 2.8 The Committee then travelled by taxi to Day Lewis pharmacy, the subject of the application, at 230 Brixton Hill. 2.9 The Committee noted that this was also situated on a shopping centre served by the same buses as the Day Lewis pharmacy at 108 Brixton Hill, having the same eight day buses and the same two night buses running along the road The pharmacy had a sign in its window advertising its opening hours as Monday to Friday 9 to 6 and Saturday 9 to 1. It advertised the following services in its window: quitting smoking, contraception advice and medicine review It was situated in a row of shops, a rather large second-hand furniture shop, an access storage shop and a café. It was next to a Pentecostal church and there were also take-a-ways and an Internet café. There was a large housing estate immediately behind it. There was no parking immediately outside, although there was a small parking area further along the row of shops It gave the appearance of a more rundown area than that around 108 Brixton Hill and there seemed to be few visitors to the shops or pedestrians on the stretch of pavement outside this row of shops The Committee then walked to S G Manning which was further along Brixton Hill at 294. It was close to the crossroads of the South Circular Road, Streatham Hill and Brixton Hill. It offered smoking cessation and screening services there was no display of its opening hours. It had a display screen advertising non-nhs services including malaria protection The Committee then walked to the site of the proposed new surgery at 1a and 1b Palace Road, using the light controlled crossings. There were 4 light controlled crossing areas at the crossroads itself and a further light controlled crossing on Christchurch Road. The Committee crossed using the light controlled crossing on the South Circular and Streatham Hill and thus did not need to cross Christchurch Road There were no inclines encountered after 230 Brixton Hill on the walk to the proposed new site. Had the Committee had walked the distance between the 2 sites without stopping it would have taken under 10 minutes It was very easy to access the new surgery site from either side of Brixton Hill Palace Road is a pleasant tree lined road off the Christchurch Road. There is on street parking. The new surgery was currently under construction on the junction of Christchurch Road and Palace Hill Road. The construction was

3 3 well advanced but seemed unlikely to be completed in 2015 as suggested on the boarding around the site. The NHS surgery was part of a development with luxury housing and 40% had already been sold off plan The Committee noted the Applicant had suggested that the distance from the current location to the proposed site was 675 m. The Committee did not measure this but there was no reason to doubt this distance and indeed none of the interested parties had contested this, although it was open to the parties to do so at the hearing if so desired It was noted that only one bus stop outside the surgery on Christchurch Road. However, the Committee observed that it was only a short walk of less than five minutes from the bus stops on the Brixton Hill/Streatham Hill (A23) route The doctor s surgery that is to relocate to the new site was approximately 100m further up Palace Road at number 3. It will therefore be relocating slightly nearer to the Applicant's current pharmacy The Committee then travelled by taxi to the Jackson pharmacy. This was set in a substantial shopping area, opposite the Edith Cavell GP surgery. This was a very different area surrounded by larger shops in the Streatham Hill shopping centre area. It is a very busy, well-used major shopping area unlike the smaller areas on Brixton Hill. There is a barrier of concrete flower beds in the centre of the road but with spaces at intervals for pedestrians to cross. The Edith Cavell surgery is on the same side of the A23 as the proposed new location The Committee then travelled by taxi to the Streatham Place surgery, from which it was a short uphill walk to the New Park pharmacy. This appeared slightly nearer on foot to the proposed location than 230 Brixton Hill but either locations would be relatively easily accessible from the Streatham Place surgery. 3 A summary of the above observations was provided to those in attendance. They were invited to comment upon them or indicate if any of the observations appeared to be inaccurate. 3.1 No such comments or observations were made. 4 Oral Hearing Submissions 4.1 Mr Wardle attended from Charles Russell Speechlys representing the Applicant, Tayzana Ltd trading as Day Lewis Pharmacy. Also in attendance as observers were Mr Tim Harrington the commercial director of the Day Lewis pharmacy and Mr Qasim Mohamedbhai a pharmacist employed by Day Lewis. 4.2 Mr Bhavin Patel attended representing the LPC. 4.3 Mr Daly attended from Rushport Advisory representing Jackson Chemist, S G Manning Pharmacy and Upper Tulse Hill Chemist.

4 4 4.4 Mr Daly requested that his client Ms Ososami be permitted to observe and this was allowed. Tayzana Ltd trading as Day Lewis Pharmacy 4.5 Mr Wardle said that regulation 24 was a regulatory test and there were five matters that the Committee needed to consider. Matters 2 to 5 were not contentious. He said that the most contentious matter was whether or not patient groups used to accessing services at the existing premises would find the new site significantly less accessible. 4.6 Mr Wardle said that the only other matter which had been raised was in the SG Manning letter of the 7 May 2015 signed by Mrs Asmita Patel. In that letter, SG Manning pharmacy had suggested that there would be an impact on their pharmacy. He argued that save for that mention; this was not referred to with any force and had not been pursued further. 4.7 Mr Wardle stated that there would be no significant change in arrangements in place for the provision of local pharmaceutical services. There was no suggestion that this application would have significant detriment on the proper planning in respect of the provision of pharmaceutical services. 4.8 The same services would be provided at the new site and the opening hours would be the same. The Applicants guaranteed and had also confirmed in the application that services would be uninterrupted. Mr Wardle therefore stated that in his opinion matters 2 to 5 were not contentious. 4.9 The only real difficulty lay in 24 (1) (a) with regards to patient groups. There was a lot of information in the bundle before the Committee in terms of what is a patient group and this is not defined in the regulations. He referred to the guidance issued by the Department, The term patient group reflects the requirement for HWBs, when developing their PNAs, to have regard to the demography of their area and the different needs of people in their area who share a protected characteristic, for example, a large travellers site, a large sheltered housing complex. These are the characteristics such as age, sex and disability that form the basis of the public sector equality duty under the Equality Act He referred to the PNA and the protected characteristics referred to First of all looking at age, in this area, the whole of Lambeth, the population is younger than the average population. It is a relatively young population. 74% of people in Lambeth are of working age compared with 65% nationally There are fewer children, that is 18% in Lambeth compared to 19% for London as a whole. There are significantly fewer people aged 65 and above. In Lambeth 8% of the population are aged over 65 compared to 17% in England as a whole. He argued that this is relevant as children, and those aged over 65 are more likely to need to visit a pharmacy.

5 He referred to the figures regarding ethnicity in Lambeth and also in Brixton Hill. In Lambeth, black Caribbean and black Africans account for approximately one third of the population, this compares to 3.5% for the population in the whole of England In relation to health, the PNA does not give comparable figures regarding life expectancy. However he noted that the figures for smoking are relatively average, drug use is higher than average and teenage pregnancies are33.2/100,000 compared to 27.7/100, The figures for childhood obesity are slightly higher than the national average and slightly lower for diabetes. The figures for sexually transmitted infections (STIs) are slightly higher than the national average. One other matter of note at page 43 of the PNA is the number of items dispensed per pharmacy. In Lambeth the average was 5,036 in the financial year 2012/2013 in London the average was 5,225 in the financial year 2012/2013 compared to 6,628 for England as a whole in the financial year 2012/ In Lambeth, pharmacies supply relatively fewer items and Electronic Prescription Service (EPS) is available in Lambeth Mr Wardle then turned to the specific information for Brixton Hill and the pharmacy the subject of the application He then discussed the patient groups and the patients that use the pharmacy. He argued there will be overlap between different patient groups whether it is by reference to where a pharmacy patient lives or by reference to the surgery or by location of the existing pharmacies. The Applicant had provided information about where patients live, which surgery they attend and the same people are in different groups He is also referred to the characteristics of the population. The area is a mix of housing types; the properties are largely Victorian terraces and apartment blocks of varying age. The housing stock is relatively mixed. In the ward Brixton Hill, there is no difference to the Lambeth figures. It is split almost men and women who are in relatively good health In the 2011 census, 85% of people in the Brixton Hill Ward reported to be in good and very good health compared to 84% in London and 81% in England as a whole. The population have better mobility in that in Brixton ward, 5.9% regarded themselves as mobility limited a lot compared to 6.7% in London and 8.3% in England In the Brixton Hill Ward, those aged 16 and under in Brixton Hill ward were 15.8% of the population in 2011 compared to 19.8% in London and 18.9% in England. Those aged over 65 in 2011 were 7.1% of the population in the Brixton ward compared to 11.1% in London and 16.4% in England. If you look at ethnicity in the Brixton Hill Ward, 26% were black BME and 3.3/3.4% in England.

6 He referred to the patient groups referred to by the Jackson pharmacy in their letter of : Patients registered with Brixton Hill Group Practice Patients registered with Stockwell Group Practice Patients registered with Palace Road Surgery Patients registered with Hetherington Group Practice Patients registered with Hurley Group Practice Patients registered with Mawbey Group Practice Patients who live off Brixton Hill Patients who use the Day Lewis pharmacy when shopping locally 4.23 He said that patients who live off Brixton Hill Road were accepted as a patient group by everyone He then referred to the map which the Applicants had supplied of patients using the existing location for dispensing services identified by postcode The map includes all dispensing areas including collection and delivery services. He said that 85% of patients had collection and delivery services with only 15 % collecting their prescriptions from the pharmacy There is a cluster of patients between the existing and the proposed site of the pharmacy. Thereafter the scattered becomes wider. The principal cluster lies between the surgery and the existing site The other patient group is those who use the Day Lewis pharmacy when shopping locally. The opinion is that patients don't use the pharmacy at the existing location because of the location of other shops and this was not a local shopping area A significant shopping destination is the Streatham Hill area. Mr Wardle described the Brixton Hill area as a run of small retail units broken up by blocks of flats. It is more likely that people would travel past the top Day Lewis pharmacy to go to the Streatham Hill area. As was noted by the Committee, this is not a shopping centre that attracted people to it. The Brixton Hill area is approximately a thousand metres of shops strung out As was noted by the Committee at the site inspection, this is quite a quiet road in terms of people walking around; it is not really an area with passing trade. When he attended the premises he did not see anyone go in or out of the pharmacy. The client states that there are perhaps 10 people a day who go in and out of the pharmacy it is not particularly busy in terms of walk ins. Accordingly, the site was not particularly relevant.

7 Jackson chemist referred to GP surgeries. He agreed that you could consider patient groups by reference to a GP surgery. However, from the information provided, the majority of prescriptions come from the nearest three surgeries, Brixton Hill, Palace Road and Streatham Place. 1/3 of prescriptions come from surgeries further afield. This is a relatively quiet pharmacy; it dispenses only 2900 items a month compared to the average for England of 6600 items This pharmacy does not fit a high street location profile. If you averaged the prescriptions out, this comes to 115 items a day on the basis of 25 working days a month. Around 85% of those items are delivered. Therefore there are between 14 and 17 items dispensed to walk in patients per day. Although the average number of prescriptions varies, you could say that it is 10 at most, prescriptions brought into the pharmacy each day In terms of other services, in the last three months there have been: Medication Use Reviews (MURs) a month New Medicines Service (NMS) a month minor ailments a month Emergency Hormonal Contraception (EHC) a month This is not particularly significant. There is not a lot of disagreement about patient groups He then turned to accessibility. The test is that the premises have to be significantly less accessible. He argued that you can t discount collection and delivery even if it is not a commissioned service, as it will continue after the relocation. In relation to the walk ins of 10 a day, you need to consider if it is significantly less accessible as per page 19 of the NHSLA guidance, whether or not there are any geographical barriers and none apply here. The distance is generally agreed at 650 m. The distance itself does not make the premises significantly less accessible. He queried whether or not there were any other obstacles Although it is described as a hill, by the time you get to the existing area, it is level ground. The pavements are well maintained there are a number of crossing points and therefore there will be no problem crossing from one side of Brixton Hill to the other. There is a crossing point at Christchurch and Palace roads. Therefore there are no significant barriers. By reference to those travelling by bus and cars, he believed that patients did not travel by bus as the distances are insufficient to justify a bus journey He had noted the same bus routes as the Committee had, however patients were not using them, they were not driving as parking is very limited throughout the area. Parking would in fact be slightly better at the proposed site as there is free parking on the street but this is limited.

8 This is not an issue as patients accessing the current site tend to live nearby. Car ownership is very low in this area, 60% of people do not have access to a car. There are no real issues in relation to bus or car, it is not how this population moves around. There are no barriers in terms of access He suggested that patient groups would be those travelling from home The largest population as indicated by the map produced lived between the two sites. For some there would be a little more distance to travel and for some a little less. Therefore for the wider group, the overall net effect is neutral. Some may have further to travel but overall this will not render the new site significantly less accessible Looking at the groups described by the interested parties, given the figures, he does not believe that the people shopping locally who use the Day Lewis Pharmacy is a patient group. But even if it was, it is a long stretch and certainly longer than the distance proposed therefore there would be no difficulty in accessing the new site. The other point to bear in mind is that down at the crossroads, you can see the site from the crossroads it is a couple of hundred metres or so therefore it is not a significant distance In correspondence SG Manning, state that they would extend counter hours if required. If access was genuinely an issue it would make no sense to offer this. It demonstrates that there is no barrier. The location is only 400 m from SG Manning, therefore the road cannot be a barrier to those using the surgeries Given the fact that there are approximately 10 walk in patients a day, it could be very small numbers. If the distance from the surgeries to the pharmacies is a significant factor he would expect the profile to show a clear spike in relation to surgeries For example, according to NHS business services authority (a copy of this document was not made available to the Committee members), the Vantage pharmacy on Upper Tulse Hill, on the east side of Brixton Hill has 56% of its business from the Palace Road surgery. This is notwithstanding that the Palace Road surgery is further away than the nearest pharmacy. Mr Wardle said that this is the problem with the use of patients registered with surgeries as patient groups in this case; it does not take us very far The only picture given is that this is a relatively mobile population when it comes to the use of pharmacies. The New Park pharmacy is next to Streatham Palace surgery but according to the NHS Business Services Authority only 50% of its trade is from the adjacent surgery. 16% is from Clapham Park surgery, it does not paint a clear or helpful group If you look at SG Manning, a third of the patients are from Palace Road Surgery, 14% from Brixton Hill and 14% from Hetherington which is 1.5 to 2 miles to the north west of the pharmacy The information suggests that patients are not necessarily walking to the surgery and then going on to the pharmacy. It suggests there is a general free

9 9 movement of people around the area. In terms of the patient groups set out by the interested parties, distances are not significant for any of the patients. The distance is not significant Brixton Hill is 0.4 to 0.3 away. Patients are already travelling up to 0.7 of a mile but, bearing in mind they are already customers, are travelling 0.4 of a mile walking away from the surgery and past pharmacies that are nearer and choosing to walk beyond them. To these patients these distances are not a barrier. If you look at the Stockwell group, the distance of 0.3 miles would be essentially the same if the pharmacy moves south. The Palace Road surgery distance is 0.3 miles and thereabouts and the distance would move to 0 miles. Hetherington surgery would be 0.3 miles away and Edith Cavell surgery is not mentioned but this would be 0.2 miles closer. The Mawbey Group surgery, the distance would increase from 2.4 to 2.7 miles If you look at the Streatham Place surgery (Hurley), 14% of the pharmacy prescriptions dispensed, the second biggest source of prescriptions, the distance was 0.4 miles and it would now be 0.4 miles Even if classified by practice, the relocation does not render the pharmacy significantly less accessible. Some would have the same distance, just as some would be a bit nearer and some would be a bit further Mr Wardle said that in conclusion, most of the pharmacy services arecollection and delivery and the relatively few walk in patients could be classified a number of ways but it is not particularly contentious. For any of these patients, the new site would not be significantly less accessible, for some it would be further away, for some nearer, but the distances are relatively short and the population is relatively young and mobile and there are no barriers between the two sites The Applicant was asked why his client did not choose to close this pharmacy. Mr Wardle responded by saying that the pharmacy was bought three years ago; it was very rundown and bought off the administrators. Attempts have been made to build it up but at 2800 items, it was not well used. Day Lewis therefore had to either close it or seek to find a location where it would serve a better purpose Queries were raised regarding the map produced by the Applicant. It was suggested that there are dots on the map and that if there were 2800 to 2900 prescriptions a month, over what period did this relate to The response was that the Applicants had taken a sample and plotted over a period of less than a month so the map would not be swamped. Mr Wardle was asked if the pharmacy would have been aware of the reasons for the sample then they were asked to provide it. It was not clear how the patients were selected for the plotting by the individual pharmacy The Applicant was then asked about travel methods and the claims that walk in patients do not drive to the existing site. It was suggested that the interested parties have seen people park and going to the pharmacy. Mr Wardle said this

10 10 did not happen during his period of observation. He conceded that some people may use the bus and that there are relatively few spaces to park at the current site so probably some would use the car but not many Mr Wardle conceded that the EHC, NMS and MUR patients has not been plotted. They had only plotted dispensing patient but he anticipated that they would mirror a similar location The Applicant was asked how many patients came into the pharmacy after visiting the doctor but he did not have the figure for this. He was also asked about elderly patients as 7% of the ward is 65 and over. He had no figures for pregnant women, women with young children and therefore it was argued, that this has not been considered. The Applicant was asked if it was likely these groups would access pharmaceutical services at the current site and it was agreed it was likely they did The Applicant was referred to the original application by the pharmacy for relocation. In that application, the Applicant had defined the patient groups as Patients accessing pharmaceutical services through the collection and delivery arrangements Residents who live in the residential properties located around the crossroads formed by Brixton Hill/ Streatham hill running north/south and Streatham Place/Christchurch Road running east / west that come into the pharmacy to access services The Applicant was asked if such patients were accessing services at the premises. Mr Wardle replied that they were. It was argued that this was a significant group if this amounted to 3000 prescriptions per month. Jackson Chemist, S G Manning Pharmacy and Upper Tulse Hill Chemist Mr Daly was representing three pharmacies, he stressed that he had no conflict of interest and that the representations for all three clients were the same He noted that the numbers quoted range from 2800 to 3500 prescriptions and that 85% of those were delivered. He argued that his clients do not have an objection if Day Lewis wanted to relocate to new premises, but in reality, the Applicant was asking to open up a new pharmacy half a mile away as it wanted to close down and leave the area He referred to the NHSLA guidance note published December He wanted to apply the guidance to the facts in this case. The first point is the Applicant s definition of patient groups must fail as a matter of fact and law. You must consider the patients accustomed to accessing the pharmacy. The Applicant had only defined one patient group. He noted that patient groups could be defined in very broad terms. He argued that you could say that it was the end of the matter if the Applicant could prove that the premises were not significantly less accessible. You could say that if it is not significantly less

11 11 accessible for one group then it is not for everyone. The guidance supports that position He referred to paragraph 31 of the guidance which states that the Applicant or other parties may support identification of patient groups by reference to dispensing or other data. Where supporting data is provided, it should be considered alongside other data available to the Committee and any comments on the data by other parties. The Committee should place whatever evidential weight it deems appropriate on information that is provided without supporting data and on any supporting data that is produced He is also referred to paragraph 36 of the guidance, which states, the lack of evidence supporting contentions made in relation to accessibility for patient groups can often result in the Committee not being satisfied that regulation 24 (1) is met He argued that the only hard evidence produced was a map plotting the post codes of patients using dispensing services. The map seems to suggest that the overwhelming majority of patients live south of the present premises however he suggested that the evidence was opposite. He said he had used the same map blown up and when you zoom in and entry postcode, you often get more than two balloons on the number below He felt that the majority of the patients live north of the current site and the majority of single dots; especially at the crossroads, indicated there were smaller numbers therefore if you go further north you get larger numbers. He argued that in fact 70% of patients live north of the site. However, he indicated that he had not calculated this but he had visually estimated it He said he was not saying that patients around the crossroads were not a patient group but that it was actually a very small number If the Committee accepted that the majority of patients live north of the current site and the distance between the premises is 675 m, the South circular Road is obviously very busy road and the Committee could not simply consider the journey between the two sites The new regulations are very specific that where you have defined patient groups you can't simply say it is one big group In its representations, the Applicant had accepted that you cannot look at the journey between the two sites, and that you had to look at the journey the patient made. The Committee has to look at the patient groups and where they travel from He said that there are patients who travelled from the surgery to the pharmacy even if it was a small number In relation to GP practices, the data says that 46% of current descriptions are dispensed from the Brixton Hill surgery and come from the north. His clients

12 12 considered that it was not right that the majority of patients came from south but now the Applicant s document proves it In relation to dispensing and other services, less than one in 10 of the current users were registered with the surgery that the Applicant wants to move to The guidance talks about methods of travel, the Applicant refers to this category but says it is only small numbers. It is easy for the pharmacy to get data but it has chosen not to He said that the bus services listed went up Brixton Hill, a lot of buses went at Brixton Hill but you can't get a bus from the current location to outside the new location. The only bus that stops outside the proposed location, the 201 comes from south of the South circular but does not travel along the north Because the junction is busy, there are no bus stops at the junction He argued that although there is parking on the street, it is congested and there is certainly no dedicated parking He then referred to the guidance at 9(c) regarding types of pharmaceutical services and said that he had no idea where MUR patients came from. It is impossible to know where the patients come from if the Applicant doesn't give data If patients lived to the north of the current pharmacy which he argued the majority did, a few would get buses and some would walk but if the journey increased from 600 m to 1275 m, it is simply a journey patients would not make. The Applicant says 9% of the Palace Road surgery patients receive dispensing services from the south. In terms of demography, at 9(e) the Committee should consider if patients are elderly or of limited mobility, there is no data at all about these Applicants. It is up to the Applicant to provide evidence of patient groups In the guidance at paragraph 16 examples are provided that may render a site less accessible. The GP surgery is only 400 m from SJ Manning but SJ Manning is not applying to move. The only people who will find this site more convenient is less than 10% of patients registered with the Palace surgery No one else would have any reason to go to the Palace Road because there are no shops and no facilities, it is a residential area The new site does not match to the current location in terms of shopping facilities in the area. He argued that it was a matter of common sense Mr Daly argued that you could not treat the 1000 m stretch of shops as one shopping area, there was a repetition of services. It is one very straight road with groupings of shops serving a particular area. Each grouping serves its own area. There are no shops on Palace road. Without the data about patients, it can't be said that they have no problems accessing, the Committee simply

13 13 can't guess at the evidence. The evidential burden is with the Applicant. More evidence is needed about where people came from Palace Road surgery used to be closer to Tulse Hill so its patients had an older relationship with the pharmacy there Questions were asked about the scatter diagrams and how those had been interpreted by the interested parties. Mr Daly said it appeared that they had been a snapshot of one week, although, it was difficult to properly analyse this In closing, Mr Wardle indicated that only one patient group had been identified, a lot of information had come from the parties and from the Committees own observations as outlined in the details of the site inspection. The interested parties do not want the pharmacy to move. It can't be argued that accessibility is an issue over such a short distance. Because the interested parties could not argue that it was significantly less accessible they were now seeking to try to say that there was insufficient evidence However, if you look at the current guidance at paragraph 10 and paragraph 9, patient groups have been identified and they can be identified by local GP practices and the Applicant had provided this data. Information had been provided about the methods of travel, the majority would walk as some would get small numbers would get on the bus and some would drive. The majority of patients accessing services use the dispensing and collection and delivery service Dispute had been raised with regards to the number of prescriptions, the latest figures for August were correct With regard to the diagram, they had provided a snapshot and it gives an idea of where the patients resided The Applicant had provided information about which surgeries the patients have been registered with the Committee had no reason to doubt the profile of the ward or locality as described in the Pharmaceutical needs assessment (PNA) It was clear that the suggestion that no evidence of been put forward was clearly wrong At paragraph 16 of the guidance, there is reference to shopping facilities it is a broadbrush statement in relation to accessibility, the Committee had information about where patients live. Patients will not find the new site significantly less accessible The Applicant had given information on journeys from surgeries to the proposed site and had explained the distances. The patient groups identified accessing services from where they lived and the GP surgery where they were registered, there were no barriers. South of the junction there is a bus stop on the south/east junction on the Palace road side.

14 In conclusion for patient groups, evidence had been provided in terms of mobility of the population, it did not take a leap of imagination. In relation to Tulse Hill, it is clearly relevant when considering that half of prescriptions dispensed are Brixton Hill. They can easily go to Palace surgery if the reverse is true. If they can travel from Palace road to the existing premises, then it must be accessible. 5 Consideration 5.1 The Pharmacy Appeals Committee ( the Committee ) appointed by the Family Health Services Appeal Unit of the NHS Litigation Authority had before it the papers considered by NHS England, together with a plan of the area showing existing pharmacies and doctors surgeries and the site of the proposed pharmacy. 5.2 It also had before it the responses to the NHS LA s own statutory consultations. 5.3 On the basis of this information, the Committee considered it was not necessary to hold an Oral Hearing. 5.4 The Committee had regard to the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 ( the Regulations ). 5.5 The Committee first considered Regulation 31 of the regulations which states: (1) A routine or excepted application must be refused where paragraph (2) applies (2) This paragraph applies where - (a) a person on the pharmaceutical list (which may or may not be the applicant) is providing or has undertaken to provide pharmaceutical services ("the existing services") from - (i) the premises to which the application relates, or (ii) adjacent premises; and (b) the NHSCB is satisfied that it is reasonable to treat the services that the applicant proposes to provide as part of the same service as the existing services (and so the premises to which the application relates and the existing listed chemist premises should be treated as the same site). 5.6 The Committee was not required to refuse the application under the provisions of Regulation The Committee had regard to Regulation 24 which requires the following five conditions to be met:

15 15 (a) (b) for the patient groups that are accustomed to accessing pharmaceutical services at the existing premises, the location of the new premises is not significantly less accessible; in the opinion of the NHSCB, granting the application would not result in a significant change to the arrangements that are in place for the provision of local pharmaceutical services or of pharmaceutical services other than those provided by a person on a dispensing doctor list (i) (ii) in any part of the area of HWB1, or in a controlled locality of a neighbouring HWB, where that controlled locality is within 1.6 kilometres of the premises to which the applicant is seeking to relocate; (c) (d) (e) the NHSCB is not of the opinion that granting the application would cause significant detriment to proper planning in respect of the provision of pharmaceutical services in the area of HWB1; the services the applicant undertakes to provide at the new premises are the same as the services the applicant has been providing at the existing premises (whether or not, in the case of enhanced services, the NHSCB chooses to commission them); and the provision of pharmaceutical services will not be interrupted (except for such period as the NHSCB may for good cause allow). 5.8 Pursuant to paragraph 9(1)(a) of Schedule 3 to the Regulations, the Committee may: confirm NHS England's decision; quash NHS England's decision and redetermine the application; quash NHS England's decision and, if it considers that there should be a further notification to the parties to make representations, remit the matter to NHS England. 5.9 The Committee considered the position in relation to each condition In relation to condition (a), the Committee considered the map submitted by NHS England which clearly shows the locations of the existing pharmacies [with the exception of Day Lewis at 108 Brixton Hill] as well as the proposed site and medical practices within the area The Committee considered the information before it with regard to the patient groups who are accustomed to accessing pharmaceutical services at the existing premises. The Committee considers that it must seek to identify the patient groups who would potentially be affected by the relocation based upon the information provided by the parties. This information is most commonly going to be provided by the Applicant but others may also be able to

16 16 contribute to the information on which the Committee will proceed to determination In this case, the Applicant has identified two patient groups: Patients who access pharmaceutical services through its collection and delivery arrangements, and Patients who live in the residential properties located around the crossroads formed by Brixton Hill/Streatham Hill running north/south and Streatham Place/Christchurch Road running east/west and who come into the pharmacy to access services (which the Applicant in its appeal now refers to as the local area) The interested parties had also identified further patient groups as: Patients registered with Brixton Hill Group Practice Patients registered with Stockwell Group Practice Patients registered with Palace Road Surgery Patients registered with Hetherington Group Practice Patients registered with Hurley Group Practice Patients registered with Mawbey Group Practice Patients who live off Brixton Hill Patients who use the Day Lewis pharmacy when shopping locally The Committee noted that this list did not include patients registered with the Edith Cavell surgery on Streatham Hill which was far closer to the existing site than some of the practices identified The interested parties did not fully explain why it had identified the patients registered with some GP surgeries and not others as forming a particular patient group. The Committee did accept that some users of the pharmacy would have travelled from their GP surgery to the pharmacy albeit a small number and as such it was appropriate to consider them as distinct patient groups although it accepted the point made by the Applicant that any such consideration should also consider patients registered with the Edith Cavell surgery Although the Applicant did not accept as patient groups those who were accustomed to accessing the pharmacy by reference to the surgery they were registered at, the Committee noted that in this case, as accepted by the Applicant, there would be a small number of patients who attended the surgeries and then travelled immediately to the pharmacy for dispensing or other services.

17 At the hearing, the Applicant appeared to merge patients who live off Brixton Hill with its second patient group it identified patients who live in the local area, the interested parties also variously described this group which the Committee will refer to as patients living in the local area who come into the pharmacy to access services 5.18 Accordingly based on the representations made by the parties, the Committee considered the following groups: Patients who access pharmaceutical services through its collection and delivery arrangements Patients living in the local area who come into the pharmacy to access services Patients registered with Brixton Hill Group Practice Patients registered with Stockwell Group Practice Patients registered with Palace Road Surgery Patients registered with Hetherington Group Practice Patients registered with Hurley Group Practice Patients registered with Mawbey Group Practice Patients registered with Edith Cavell Surgery Patients who use the Day Lewis pharmacy when shopping locally 5.19 The Committee accepts that some of these groups will relate to relatively small numbers of patients but as patient groups accustomed to accessing pharmaceutical services at the existing premises the Committee should on the facts of this case consider these groups. The Committee also accepts that some patients will be members of more than one group and that there will be some overlap between groups In considering the journeys made by the individual patient groups, the Committee noted that the Applicant asserted that the majority of patients accessed the pharmacy on foot but conceded that some would access the pharmacy by bus or by car Based on the Committee s observations at the site inspection, irrespective of the starting point of the patient in any of the patient groups, a patient accessing the pharmacy by car would not find the pharmacy significantly less accessible at the proposed new location, given the short distance involved and the limited parking available at the current location. Arguably those driving to the pharmacy may find it more accessible given the availability albeit limited -of on street parking.

18 Similarly based on Committee s observations at the site inspection and the representations made by the parties, irrespective of the starting point of the patient in any of the patient groups, a patient accessing the pharmacy by bus would not find the pharmacy significantly less accessible at the proposed new location Those accessing the current site by bus would either use one of the many buses running along the Brixton Hill/Streatham Hill (A23) route or the bus routes running along the South Circular. If the patients used the South Circular routes, they would then either walk from the junction to the current site or use one of the A23 bus routes. Patients travelling on an A23 route would have to cross the A23 either to access the current pharmacy or to catch a bus for the return journey If the pharmacy relocated, those patients would still have to use the same routes. For patients using a South Circular bus route the journey is likely to either be the same or possibly shorter. For those using an A23 route the bus journey may be slightly longer or shorter depending on the direction of travel and although the distance from the bus stop to the surgery may be marginally longer in the order of a minute or two s walk based on the Committee s observations, it could not be said to render the new site significantly less accessible The Committee also noted that the junction of the A23 or the South Circular was well served by means of four light controlled pedestrian crossings and as such, the junction could not be regarded as a barrier. Patients who access pharmaceutical services through its collection and delivery arrangements 5.26 The Committee was of the view that if patients were not accustomed to accessing pharmaceutical services at the premises, then they were not subject to the test under condition (a). The Committee, however, was particularly mindful that the provision of essential services is not limited to the dispensing of prescriptions. The Applicant estimates that 85% of its dispensing services are accessed via its collection and delivery services; this group contains by far the largest number of patients. Assuming that the collection and delivery service continues as stated by the Applicant, this group will be unaffected by the proposed relocation. However it is recognised that this service is provided voluntarily and cannot be guaranteed as part of the contractual terms. Patients living in the local area who come into the pharmacy to access services 5.27 The Committee noted the Applicant s evidence as to the low numbers who either walk in for dispensing services or walk in for other pharmaceutical services. However notwithstanding the low numbers, this is still a group that must be considered.

19 The Committee agree that it must consider the journey from the patient s home to the proposed relocation not the journey between the existing and proposed site The Applicants supplied a map which purported to be a snapshot of where patients lived who had accessed dispensing services. The Applicant claimed that this demonstrated that the majority of patients lived between the two sites and the interested parties claimed that it showed that the majority of patients lived to the North of the existing site The Committee were unable to put much evidential weight on this document The Applicants had failed to properly explain their methodology. It was not clear over what time period the data was collated, how the data was collated and whether or not it also included those who had used the dispensing and collection service. No such mapping had been carried out for those who accessed the pharmacy for non-dispensing services The Committee received no information which indicates that special consideration needs to be given to any group based on a 'protected characteristic'. However, the Committee was mindful of the need to consider any groups with protected characteristics for the purposes of the Equality Act 2010 and the Committee is therefore required to consider the elimination of discrimination and advancement of equality between patient groups and persons who do not fall within these groups The Committee noted that the evidence from the PNA suggested this was a relatively young and relatively mobile population Some patients living in the locality will be nearer to the new site, some will have a different journey but of approximately equivalent distance and some will be some further away. Those who will be further away will be mostly those living to the North of the existing site If the current site is accessible to them, it seems likely based on the observations of the Committee and the evidence presented that the buses which run along the A23 will be accessible. Those to the North of the existing site may have to walk further or may have to make part of their journey by bus. It was suggested by the interested parties that patients would simply not make such a journey, however the test to be applied is not whether or not patients will want to make that journey but whether or not the additional walk or bus ride would render the site significantly less accessible. Based on the evidence the Committee is of the opinion that whilst for some patients in this group, it will be less accessible, it will not be significantly so. The Committee also noted that based on the figures quoted by the parties from the NHS Business Services Authority (a copy of this document was not made available to the Committee members) that patients in this location do not for whatever reason- use the nearest pharmacy and this appears from the evidence to hold for all the pharmacies in the area. Whilst there may be a preference for the nearest pharmacy, it is not overwhelmingly so for any pharmacy, for example only 50% of the prescriptions dispensed by the New Park Pharmacy are from