The Court of Appeal dismissed the appeal in its entirety.
The Tameside challenge
The Appellants submitted that the SoS was required to consider the Changes in the context of the overarching statutory duties, particularly the duty to "secure continuous improvement" in the quality of NHS services and that this was material to the duty of sufficient enquiry. They argued that the SoS should have obtained reliable and cogent information rather than simply relying on the 15% Figure.
The Court of Appeal held that the SoS' duty of sufficient enquiry was subject to a Wednesbury unreasonableness challenge only and that it was for the SoS, not the Court, to conclude what was relevant and the nature and extent of any inquiry (per R (on the application of Khatun) v Newham LBC [2004] EWCA Civ 55). Further, the Court of Appeal agreed with Collins J that it was clear from the evidence that the SoS' decision had not in fact been taken in reliance on the 15% Figure. Rather, the SoS recognised the figure's limitations and proceeded on the basis that it was not possible to achieve a more reliable estimate of how many pharmacies might close. This conclusion was not irrational and it was one which the SoS was entitled to reach.
It was noted by Collins J, in a passage with which the Court of Appeal agreed, that PSNC had the experience and opportunity to obtain more information itself and present that to the SoS.
The 15% challenge
On Ground 2, the Applicants argued that Collins J had wrongly assessed the significance of a failure by the Department to disclose and consult on the 15% Figure, and that he erred in concluding that the non-disclosure did not render the consultation process unlawful.
The Court of Appeal noted that it was regrettable that the Department had not been more open as to the 15% Figure during the consultation process. However, since the 15% Figure was not a critical point in the SoS' decision, the non-disclosure did not render the process unfair.
The statutory purpose challenge
The Appellants alleged that there was a settled intention to reduce the number of pharmacies and the SoS was unlawfully achieving that purpose through the Changes. The Court of Appeal held that whilst it was clear from the evidence that a reduction in the number of pharmacies was regarded by the Department and ministers as desirable, the Changes were not made with that intention. Rather, they were made to save cost. The fact that the Changes could result in the closure of a number of pharmacies did not mean that they were for an improper purpose, or that they were unlawful.
The equality ground
On the equality ground, the Court noted that the relevant legislation imposed numerous high level duties upon the SoS to have regard to a range of factors and aims in exercising his functions. Those factors were complex and potentially conflicting, particularly given that the exercise of the SoS' functions would inevitably involve the allocation of limited resources between competing needs. The functions involved the exercise of substantial discretion.
The Court noted that any consideration by the courts of compliance with the SoS' duty to "have regard" to a particular factor would involve a review of the process, not the merits. The weight to be attributed to relevant factors was a matter for the public body assigned by Parliament to make the decision. The courts had previously emphasised the importance of not imposing too high a burden on decision-makers.
On the evidence, the Court held that it could not be said that the SoS had paid no regard to the relevant duty. The Department had produced a number of documents which showed regard to the need to: reduce existing inequalities; avoid potential new inequalities that could arise because of the Changes; and maintain reasonable access to pharmacies in rural areas. In the absence of evidence to the contrary, it could be assumed that the SoS had considered these documents. This was sufficient to discharge his duty.
