Nursing care in care homes: who pays?

The Court of Appeal was recently divided over the meaning of ‘nursing care by a registered nurse’ under s.49 of the Health and Social Care Act 2001. Richard Gordon QC, Emily MacKenzie and Tom Pascoe report.

On 4 February 2016 the Court of Appeal handed down judgment in Forge Care Homes Ltd v Cardiff & Vale University Health Board [2016] EWCA Civ 26. The case concerned the division of responsibility between the NHS and local authorities for ‘Funded Nursing Care’ (“FNC”) in Wales. 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’. The purpose of this provision was to shift responsibility for nursing care from local authorities to the NHS.

In late 2013 the Welsh Local Health Boards (“LHBs”) set the weekly rate that they pay to care homes for FNC at £128.60 per patient. The rate was based on a consultant’s report which only counted time spent directly or indirectly on nursing tasks as ‘nursing care by a registered nurse’. Consequently, the cost of social care provided by nurses, such as washing and dressing, was excluded and fell to be funded by the care homes or the local authorities.

The care homes, supported by the local authorities, argued that the report was based on a misinterpretation of s.49. They contended that s.49 requires the LHBs to pay for the entire cost of nurses working in care homes. In March 2015, Hickinbottom J accepted that argument and quashed the LHBs’ decisions.

By a majority, the Court of Appeal overturned the decision of Hickinbottom J.  Laws and Lloyd Jones LJJ held that the statutory definition of ‘nursing care by a registered nurse’ required the LHBs to atomise the tasks carried out by nurses. Section 49 thus only required the LHBs to pay for those tasks which need to be carried out by a nurse.

By contrast, Elias LJ held that s.49 must be applied in the context of regulations which require a suitable number of nurses to be present in a care home to meet residents’ health needs. Given that a nurse is available to meet health needs even when she is idle or providing social care, the LHBs are required to fund the full cost of the nurse’s presence. However, the local authorities should pay for any marginal costs of the nurse providing social care.

The Court of Appeal unanimously rejected the LHBs’ argument that they had a residual discretion, independent of s.49, to set the FNC rate under section 3 of the National Health Service (Wales) Act 2006. Further, it accepted the LHBs’ concession that nurses’ “stand-by” time should be included in the FNC rate.

Richard Gordon QC, Emily MacKenzie and Tom Pascoe are barristers at Brick Court Chambers and appeared for the local authorities.