We recently acted for a client in a particularly complex and unusual case where a pharmacy operator in Kent was granted permssion to relocate his pharmacy to a new retail development approximately 1 mile away. The case raised a number of important issues which included the fact that our client did not have a nearby pharmacy (but we had been able to secure them third party appeal rights), the fact that the local Pharmaceutical Needs Assessment had somewhat bizarrely suggested that a relocation should be approved (without any consideration of the relevant Regulations) and the fact that we considered the relocation application to be invalid in any event as the address that had been provided by the Applicant was not specific enough.
NHS England accepted that the address was not a proper address, but then went on to approve the application anyway. We appealed on behalf of our client, but solicitors acting for the Applicant argued that our client should not have appeal rights in the case and should not have been permitted to appeal the NHS England decision.
The case went to oral hearing and the oral hearing panel;
- agreed with us that our client had appeal rights
- accepted our submission that the application was not valid and allowed our client's appeal.
This was the first time that we are aware of where a relocation application has been refused at appeal because the address was not specific enough. You can read the full text of the decision here. As ever the written decision does not tell the full story of the oral hearing, but still provides a good overview of the submissions made. The Committee also noted that the solicitors acting for the Applicant had changed their submission on third party appeal rights between the stage of written submissions and the hearing itself.
One matter that we believe was left unresolved by the decision was whether it is permissible to appeal a decision of NHS England to grant third party appeal rights. We had argued that there was nothing within the Regulations that permitted such a challenge. The Committee referred to its own guidance document in support of their decision that they could consider this point. We find it slighlty troubling that a Committee can write a document and then rely on it as providing them with legal authority for their actions.