We were recently approached by one of our clients to secure permission from the NHS to open a new pharmacy near Southampton. The circumstances were unusual as another local pharmacy contractor had been operating two busy pharmacies within a large village and decided to close one down to focus all the business at the health centre based pharmacy.
We submitted an application on behalf of our client when the comments on the application were received we noticed that the local pharmacy contractor had (for whatever reason) not objected to the application and no other pharmacy contractor had submitted any comments. This is very unusual, but creates a small opportunity for the Applicant as it means that if NHS England approves the application there is no party that can appeal the decision as only certain parties have appeal rights.
We put together an extensive report to deal with the comments that had been received from the LPC. The LPC had objected stronlgy to the proposal, but their letter of objection was somewhat confusing and did not appear to properly address the legal test that NHS England would have to apply. At the same time as putting our response together, we received notification that another party had also applied to open a pharmacy in the same area as our client, so we were potentially looking at a competing application.
NHSE considered our report and decided to approve our client's application. Whilst this should have meant that no appeal could be submitted, we were surprised to receive a letter notifying us that an appeal had in fact been submitted againast the NHSE decision and it had been sent by solicitors represenitng the other Applicant who had applied after our client. We replied to Primary Care Appeals pointing out that no party had appeal rights in the case and submitted that the appeal shouuld be dismissed. Primary Care Appeals agreed with our submission and rejected the appeal.
Our client now has permission to open the pharmacy and has been able to avoid the time and expense of going through the appeal process.
This is one of a number of recent cases where appeal rights have been an important factor in an application. The Regulations governing appeal rights, especially what is known as "third party appeal rights" are complex and we have found that they are often misunderstood by decision makers.