The Court of Appeal has upheld an appeal by the Welsh Local Health Boards, supported by the Secretary of State for Health, in Forge Care Homes Ltd v Cardiff & Vale University Health Board [2016] EWCA Civ 26.
The case is concerned with the division of responsibility between the NHS and local authorities for ‘Funded Nursing Care’ (“FNC”) in Wales, but has an impact on the same question in England as the legislation is broadly the same.
FNC is provided to care home residents who require some nursing care, but nursing care is not their primary need. Under s.49 of the Health and Social Care Act 2001, local authorities are prohibited from providing ‘nursing care by a registered nurse’.
In 2013 the Welsh Local Health Boards set the weekly rate that they pay to care homes for FNC at £128.60 per patient. The rate included time spent directly or indirectly on nursing tasks, but excluded time spent on social care, such as washing and dressing. This would be funded by the care homes or the local authorities.
The care homes, supported by the local authorities, argued that this approach was contrary to s.49. They contended that s.49 requires the LHBs to pay for the entire cost of nurses working in care homes. This argument was accepted by the Administrative Court [2015] EWHC 601 (Admin).
The Court of Appeal has overturned that decision. Laws and Lloyd Jones LJJ have held that the statutory definition of ‘nursing care by a registered nurse’ required the Welsh Health Boards to look at the individual tasks carried out by nurses. Section 49 only requires the Welsh Health Boards to pay for those tasks which need to be carried out by a nurse. (Elias LJ gave a dissenting judgment).
Read the judgment here.
Clive Sheldon KC and Patrick Halliday acted for the Secretary of State for Health
