The claimant (X) applied for judicial review of a decision of the Pharmacy Appeals Committee of the defendant (N) upholding the refusals of three Primary Care Trusts to admit X to the NHS Pharmaceutical List under the National Health Service Act 2006 s.129 and the National Health Service (Pharmaceutical Services) Regulations 2005 reg.12. X sought to open pharmacies in the areas of three PCTs. Admission to the list was a precondition of dispensing NHS prescriptions and other pharmaceutical services. Each of the areas was already served by one or more pharmacies and in each case the relevant PCT refused X’s application for admission to the list. In respect of two of the claims X submitted that the committee had failed to deal with the issue of “choice” set out in reg.12(2)(b) of the Regulations adequately or at all, and in respect of the third it submitted that the committee had made a mistake of fact which resulted in unfairness and therefore amounted to an error of law.
HELD: (1) In deciding applications for admission to the list, the decision-maker had to take a three-stage approach. First, it had to identify the relevant neighbourhood. Second, it had to make a judgment as to whether the provision of relevant services in the neighbourhood was already adequate. In considering adequacy, regard had to be had to all relevant factors, including those listed in reg.12(2). The weight given to those factors was a matter for the decision-maker. If the decision-maker found the provision inadequate, then it had to go on to the third stage, which involved consideration of whether the proposal in the application was necessary or desirable in order to secure adequate provision of pharmaceutical services in the neighbourhood. The factors listed in reg.12(2) were again at least indirectly relevant to that decision. Where the services proposed would result in an over-provision of services, the decision-maker could still find it desirable to grant the application to ensure that any deficiency in services was remedied, even at the cost of excess provision.