Reducing your pharmacy core hours was supposed to become easier, but what is really happening?
Hundreds of pharmacies have closed in recent years. Between July 2017 and July 2023, the number of operating pharmacies in England fell by 914 from 11,723 to 10,809 with the rate of closures increasing significantly in recent time.
In September 2023, amendment Regulations were introduced that removed the need for 40 hour pharmacies (and 100 hour pharmacies) to show evidence of a change in need to re-distribute or reduce their core hours. The new Regulations appear to be an attempt to stem the tide of closures and keep pharmacies open where possible with CPE describing the changes as being related to “workforce and cost pressures”.
Unfortunately, what we are seeing is that whilst some ICBs are adopting a pragmatic approach and permitting amendments to opening hours, other ICBs appear to be simply ignoring the new Regulations and refusing even minor change requests.
Some of these refusals have now made their way to Primary Care Appeals and December saw the first appeal decisions being issued. Unfortunately it is not good news for pharmacy contractors.
We have represented clients who were making requests to change their hours in the hope of avoiding having to close completely. Those clients have provided accounts to show they are operating at a loss and that there are other pharmacies that patients can reasonably access. At ICB level we have had approvals (which then do not go to appeal) but so far every request that has gone to appeal (ie been refused by an ICB) has also been refused at appeal.
This means that identical applications in different areas are receiving different decisions from ICBs.
In my opinion Primary Care Appeals is adopting the wrong approach to these cases. These are not criminal trials and the standard of proof is not “beyond a reasonable doubt” or “certain”. Instead, a contractor needs to show that that it is “more likely than not” that they have met the legal test, ie the balance of probabilities.
In decisions issued so far we have seen the following commentary from Primary Care Appeals
“The Applicant has provided information regarding access to those pharmacies for those who currently access its own pharmacy and how they might travel to find alternative pharmaceutical services. I have not been provided with any specific information but it is likely that there will be a mix of people who drive to the Applicant’s pharmacy, those who use public transport and those who walk. The Applicant has described the pharmacies in the area indicating how far away certain pharmacies are.”
“It is worth noting that characteristics of the persons using the pharmacy might be relevant here as well as from where they start their journey to the pharmacy. If they live close by, walk a few minutes to the pharmacy and walk back home, then even an additional 8-minute walk to the next nearest pharmacy might be considered as not maintaining the level of service provision to users of the pharmacy. I do not consider that every single individual need should be considered at length in this regard, but it would be helpful to have this information to be certain that the existing level of service provision would be maintained via local pharmacies.”
[note the word “certain” above, rather than “more likely than not”]
AND
“I also consider that no evidence has been put forward to support the Applicant’s statement that it is difficult to secure locums due to the limited hours currently offered on a Saturday. No evidence of costs for overtime or locums at different times has been provided.”
“I specifically note that the accounts provided do not provide adequate detail to indicate during what times the locum provision was required. This prevents me from establishing a correlative link between the increased fees in months where no profit was made and the hours the pharmacy is open for. To demonstrate that keeping the pharmacy open for its existing core hours is not realistically achievable, the Applicant must be able to demonstrate the correlation between the hours being complained of and the purported issues. I do not consider that the accounts provide support for the Applicant’s statements.”
All of these comments from Primary Care Appeals are from a single appeal and I have only used a few above out of many that were made. It is of course possible that a contractor could research and provide all of this information, but this is a huge amount of work ask a contractor to undertake and would be incredibly expensive work for Rushport to do on their behalf.
I could go on (and yes, I know I do!), but in summary, the new Regulations do not appear to be of much assistance unless your pharmacy is located in part of England where the ICB takes a pragmatic approach. I really hope that Community Pharmacy England , Company Chemists’ Association and Association of Independent Multiple Pharmacies (AIMp) will pick some of this up and that Primary Care Appeals will have a rethink, but until then I hope that the comments above will give contractors some idea of what level of evidence is being demanded for a successful application if it goes to appeal.