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The National Health Service (Pharmaceutical Services) Regulations 2005

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Appeals in connection with determinations in respect of controlled localities etc

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38.—(1) This regulation shall not apply to any right of appeal specified—

(a)in regulation 19(6); or

(b)in regulation 30.

(2) Where a Primary Care Trust—

(a)has determined an application or a question raised by an application under regulations 33 to 36;

(b)has refused to consider an application under those regulations on the ground that it is not satisfied as mentioned in regulation 34(2);

(c)has determined that it should, or should not, postpone the making or termination of arrangements under regulation 60, as mentioned in regulation 20(2) or 35(6)(b); or

(d)has refused to consider an application for preliminary consent under regulation 40(1) in accordance with the procedures set out in regulations 33 to 36;

(e)has determined that—

(i)the provisional date shall be extended under regulation 62(8),

(ii)the application for outline consent shall be refused under paragraph (13)(a) of that regulation or,

(iii)outline consent shall lapse under paragraph (13)(b) of that regulation;

(f)has determined an application for premises approval for new premises under regulation 64(1);

(g)has determined an application for premises approval for additional or new premises under regulation 65(1) or (3);

(h)has determined an application for premises approval in relation to a practice amalgamation under regulation 66(3);

(i)has refused to grant temporary premises approval under regulation 65(9) or 66(4); or

(j)has determined whether or not to grant premises approval to relevant premises under regulation 67,

an appeal to the Secretary of State may be made, in accordance with paragraph (5), against that determination or, as the case may be, against that refusal, by any person specified in paragraph (3).

(3) The persons who may make an appeal under this regulation are—

(a)in the case of an appeal mentioned in paragraph (2)(a), (c), (d), (g), (h) and (j)—

(i)the applicant,

(ii)any person who—

(aa)provides primary medical services within the area of the Primary Care Trust (except itself), or any other Primary Care Trust to which a copy of the application was sent under regulation 33(2)(f), (h) or (i), or

(bb)whose name is included in the pharmaceutical list or dispensing doctor list of the Primary Care Trust, or any other Primary Care Trust or Local Health Board to which a copy of the application was sent under regulation 33(2)(f), (h) or (i), or

(iii)any person who provides local pharmaceutical services under a pharmacy pilot scheme entered into by the Primary Care Trust or any other Primary Care Trust to which a copy of the application was sent under regulation 33(2)(f),

but in the case of a person specified in paragraph (ii) or (iii), that person may make an appeal only if he has made representations pursuant to regulation 33(4) in connection with the application; and

(b)in the case of an appeal mentioned in paragraph (2)(b), (e), (f) and (i), the applicant.

(4) Where, in determining any application or question raised by an application, a Primary Care Trust has, pursuant to regulation 36(9), considered that application or question together with one or more other applications or questions, any of the applicants and any of the persons mentioned in paragraph (3)(a) may appeal against the determination of any of the applications, or against any determination of a question raised by an application, and where the Secretary of State receives appeals against two or more of the determinations, those appeals shall be considered together.

(5) An appeal shall be made in writing within 30 days from the date on which notice of the decision was sent to the appellant and shall contain a concise statement of the grounds of appeal on which the appellant intends to rely.

(6) If the Secretary of State, after considering the notice of appeal, is of the opinion that it discloses no reasonable grounds of appeal, or that the appeal is otherwise vexatious or frivolous, he may determine the appeal by dismissing it.

(7) Unless paragraph (6) applies, the Secretary of State shall send a copy of the notice of appeal to the Primary Care Trust whose determination is appealed against, to those persons mentioned in paragraph (3)(a) and to any Local Medical Committee and Local Pharmaceutical Committee to which a copy of the application was required to be sent under regulation 33(2) or (3).

(8) Any person to whom a copy of the notice of appeal is sent pursuant to paragraph (7) may, within 30 days from the date the copy was sent to him, make representations in writing on the appeal to the Secretary of State.

(9) The Secretary of State may require an oral hearing of an appeal before he determines it.

(10) The Secretary of State shall, where he requires an oral hearing, appoint one or more persons to hear the appeal who shall report to him on it with recommendations as to the relevant findings of fact and their conclusions.

(11) The procedure at any oral hearing shall be determined by the person or persons hearing the appeal.

(12) An oral hearing shall take place at such time and place as the Secretary of State may direct, and notice of the hearing shall be sent, not less than 14 days before the date fixed for the hearing, to—

(a)the appellant;

(b)the Primary Care Trust;

(c)the Local Medical Committee;

(d)the Local Pharmaceutical Committee; and

(e)any other person who made representations to the Primary Care Trust in connection with the application.

(13) The appellant and any of the persons to whom notice of the hearing is required to be sent under paragraph (12) may attend and be heard in person or by counsel, solicitor or other representative, and the Primary Care Trust may be represented at the hearing by any duly authorised officer or member, or by counsel or solicitor.

(14) On an appeal under this regulation, the Secretary of State—

(a)may allow the appeal;

(b)may, in a case where the Primary Care Trust, on determining the application, considered the question whether to impose conditions to postpone the making or termination of arrangements under regulation 60 (or equivalent provision under the GMS Regulations or PMS Regulations) for the provision by a doctor or GMS contractor or PMS contractor of pharmaceutical services or dispensing services to patients on the relevant patient list, himself impose conditions to postpone for such period as he thinks fit, the making or termination of such arrangements;

(c)shall, in a case where that question was not considered by the Primary Care Trust when it determined the application, remit the question to the Primary Care Trust for determination;

(d)shall, where he allows an appeal against a refusal of the Primary Care Trust as mentioned in paragraph (2)(b), remit the application to the Primary Care Trust and direct that regulation 34(1) shall not apply; or

(e)may dismiss the appeal.

(15) The decision of the Secretary of State shall be given in writing and shall—

(a)include a statement of his reasons for the decision and of his findings of fact; and

(b)as soon as practicable, be sent to the persons mentioned in paragraph (12).

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