Two appeal processes –
Usually, market entry appeals in England are heard by NHS Resolution but, unusually, La Vie Health Care Limited v NHS England (South East London Integrated Care Board) [2026] UKFTT 01232 (HESC) is a decision of the First Tier Tribunal (FTT).
Indeed, the Tribunal Chair, giving its decision in this case, made a point of saying that some appeals go to NHS Resolution and that the powers of the FTT were “less clear”, which is hardly an endorsement of the appeal process (as to which, see below).
Facts
From about 2013, La Vie Healthcare Limited (La Vie) had a pharmacy in Charlton, South London, where it was included in the pharmaceutical list of the Greenwich Health and Wellbeing Board (HWB). The Superintendent Pharmacist was Ms Nwokocha-Ahaaiwe (the SP). La Vie said that in July 2022, their landlord shut down their premises and forcibly evicted them. The business therefore needed to relocate. After an extensive search for suitable premises, La Vie found alternative premises in Mottingham. La Vie applied to South East London Integrated Care Board (the ICB) to relocate. However, Mottingham was in the area of a different Wellbeing Board – Bromley – and this meant that La Vie was asked to provide fitness to practise information (which would not have been requested in the case of a move within the area of Greenwich HWB).
The fitness to practise form asked “are, or have been to your knowledge, subject to any investigation into, or proceedings relating to, your fitness to practise by a licencing (sic) body?”. Underneath, “licencing body” was defined as “any body anywhere in the world that licences or regulates any profession”. The response was “No” and the form was signed by the SP.
In response to an enquiry by Bromley HWB to the General Pharmaceutical Council, the GPhC said that the SP was registered and in good standing with the GPhC but that she was given a warning by the Investigating Committee on 4 April 2018 with regard to a pharmacy operating without adequate indemnity insurance in place.
It was common ground that if the warning had been disclosed when La Vie provided its fitness to practise form or, indeed, when Bromley HWB offered further opportunities to correct the information, the application for relocation would have been approved. However, these opportunities were not taken.
The Regulations
Under regulation 33 of the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013 (the Regulations), the ICB had a discretion to refuse La Vie’s application on fitness to practise grounds but, if it was considering doing so, it was required by this regulation to consider all facts which appear to it to be relevant and must in particular take into consideration a list of factors.
ICB decision
The ICB decided:
“The response does not give any good cause for not making this declaration [of fitness to practise history]. The response cites that the applicant is the corporate body and not the Superintendent Pharmacist.
The applicant lacks insight around honesty and integrity into the fitness to practise declarations, to include Superintendent Pharmacists and Directors, that are required for being included in a pharmaceutical list for a Health & Wellbeing Board area where they are not already included.
In the circumstances, there are good reasons to either refuse or put conditions for this application on fitness grounds “.
Appeal to the FTT
La Vie appealed against this decision. Unlike other appeals against decisions under the Regulations, regulation 33 currently provides that appeals on fitness to practise grounds go to the FTT, not to NHS Resolution.
FTT findings
The FTT decided that the SP had no reason to lie when filling in the fitness to practise form and that she was not dishonest at that point, but “simply mistaken, ill-informed and perhaps somewhat presumptuous of the fact that there were no problems in her practice to disclose.”
When the SP was asked by the ICB to explain the failure to mention the GPhC warning, the SP maintained that there were no fitness to practise issues to declare. Indeed, the FTT noted that “during the course of this case a range of different explanations have been given for why the [response to the ICB’s request for an explanation] did not engage directly with the investigation.” In particular, the response the SP sent to the ICB’s enquiry about why the fitness to practise history had not been mentioned was held by the FTT to be “both disingenuous and dishonest.”
The FTT stated:
“We are at a loss to understand why it was [the SP] took this position on La Vie’s application. There appears to be no particular reason to motivate such a response. [the SP] had almost nothing to gain from such dishonesty, and the tragedy here is that… had [the SP] declared the position accurately at that point, the NHS would almost certainly have accepted her explanation and moved on to consider the rest of La Vie’s application.”
The ICB did not escape criticism by the FTT which was:
“troubled by the evidence of [the ICB witnesses] that they had not considered regulation 33(3) or the criteria in it at all, and that they considered it irrelevant. No mention was made of any of the criteria in the board report or minutes, not even to the extent of saying that they had been considered but in the context did not appear to have much applicability. We can see how in some cases the criteria in regulation 33(3) might be said to have limited relevance, but in our view the terms of regulation 33(3) are such that the decision-maker must diligently consider them in any event even if it is to conclude that they do not assist with the final decision.
FTT decision
The FTT decided:
“a lack of candour with a regulator is a very serious issue. The same principle must apply in all professional contexts to all regulators. The regulatory process relies, in large part, on a regulator having trust and confidence that those they regulate will keep them informed of relevant matters and will be honest and candid when this is required. A failure to do so strikes at the heart of the efficacy of a regulatory regime. And if the regulator does not consider that it can trust a regulated individual or company, it is hard to see how that could be remedied through conditions being imposed. It could be remedied over time by a demonstration of reliability; but the ‘offence’ here was immediate and bound up with the inclusion application itself …
… as part of a company seeking inclusion in a pharmaceutical list to provide medicines to the public on behalf of the NHS, similar considerations of the need to maintain public confidence in the NHS pharmacy system arise. In our view, we also need to give appropriate weight to the need to maintain public confidence in the system so that the NHS can be assured that those who provide services to it are honest with them. We consider that the public would be concerned to find that someone who had not been candid about their regulatory history was allowed to be registered to provide pharmaceutical services to the public notwithstanding their lack of candour and their refusal to acknowledge any errors.
In conclusion and taking all relevant matters into account and for the reasons set out above, we do not accept that the company satisfied the ICB as to its fitness because of the lack of honesty about the regulatory history, and the failure to correct that history even when it was put to the company’s Superintendent Pharmacist. The dishonesty relied upon was immediate and directed at the regulator. Its relevance to the provision of pharmaceutical services was that it called into question whether the Appellant or its Superintendent Pharmacist understood what amounted to a fitness to practise issue, and whether they would be candid about them in and when these arose.”
The ICB’s refusal of the application was held to be reasonable and proportionate. The appeal by La Vie was dismissed.
Commentary
The FTT reasoning seems hard to fault. Some might think that the biggest mistake by La Vie was failing to take legal advice or failing to follow legal advice because any decent lawyer would have advised on filling in the fitness to practise form correctly and on giving a candid response and apology to the ICB’s enquiry why fitness to practise history had been omitted.
Even though the original ICB decision may have been correct, it is disappointing that an ICB can get away with ignoring its legal obligations when making a decision. If the ICB had taken legal advice, it should have been able to make a decision that complied with the requirements of the Regulations.
The Government has proposed an amendment to the Health Bill, currently at its Committee Stage in the House of Commons, that would transfer fitness to practise appeals to an NHS body which, at least initially, would be NHS Resolution.