New Pharmacy Approved in Coventry After an Oral Hearing with 4 Applicants
Tile Hill is a relatively deprived part of Coventry with a large medical centre and significant shopping parade. After the closure of the local Boots pharmacy the NHS received multiple applications to re-open a pharmacy at the shopping parade and one of those applications was from our client.
At the appeal stage the NHS decided that an oral hearing was required to decide if an application should be approved and, if a pharmacy was needed, which of the four Applicants it should approve. This was certainly one of the more interesting hearings I have attended. At the very last minute (an hour before the hearing was due to start) the advisor representing another Applicant submitted a lease document to show that their client had secured premises and had a binding legal agreement. Submitting fresh evidence at such a late stage is clearly unfair to other parties, but as the Chair of the oral hearing panel said, “We cannot ignore the reality that they do have a signed lease agreement in place.”. But did they…?
I presented my client’s case first and then had to spend time analysing this lease agreement and soon started to find problems with it. Firstly, the name on the lease did not match the name of the company that had made the NHS application, but the other side claimed this was fine as they were part of the same “group company”. The problem was that they were not in fact part of the same group company. I pointed out that even their directors and shareholders were different and at first this was denied, but later accepted. Finally, there was even a clause that said that the company named on the lease had to be successful in their NHS application, but as that company had not made the NHS application it meant that the document was basically worthless.
Another Applicant claimed that their opening hours were at least as good as my client’s as they had an amendment to their opening hours approved by the NHS at an early stage in the application process. However, we were able to show that the NHS, whilst having approved the amendment, had not in fact considered the amended application when they made their decision and it had to be the original application that was the subject of the appeal.
Another Applicant did have property, but the oral hearing panel agreed that this property was not in a good location and would also have required planning permission and a complete rebuild to be used as a pharmacy.
Somewhat bizarrely, the Applicant with the (supposedly) signed lease continued to send new evidence to the oral hearing panel even after the hearing had finished, but this additional evidence was not accepted by the oral hearing panel.
In the end the application from our client was approved and the three other applications were refused. The report of the hearing states;
5.107 The Committee was thus left with an applicant who placed great weight on the availability of premises but who at the date of the hearing had not secured premises in the way they asserted nor had they clarified why this had occurred or how long it would take to be rectified. This was in contrast to Chalice Services Ltd who had provided straightforward evidence as to the premises they expected to take on. As such the Committee concluded that the Bluecross Health Ltd application was again inferior to that of Chalice Services Ltd.
5.108 The Committee was mindful of the desirability of only granting one application and on the basis of the advantages outlined above, it preferred the application of Chalice Services Ltd.
Whilst it is always good to be successful for a client, this case highlights a problem with late evidence to the NHS. At the start of the hearing the Chair was willing to accept, even reluctantly, that the competing Applicant to my client had a valid lease agreement in place. It was only because we were able to review the document whilst the hearing was in progress and during a short lunch break that we were able to demonstrate that this was not in fact the case. It is possible that evidence can be found at a late stage that is important to a decision, but I found the events in this hearing to be very unsatisfactory and thankfully the panel members did too.