Councils win Supreme Court appeal over funding of nurses in social care

Welsh local authorities have won a Supreme Court dispute with NHS bodies over responsibility for paying for the work done by registered nurses in social rather than health care settings.

An estimated £250m a year was said to be at stake in the case of R (on the application of Forge Care Homes Ltd and others) v Cardiff and Vale University Health Board and others [2017] UKSC 56.

Under s. 49 of the Health and Social Care Act 2001 a local authority is not required to fund ‘nursing care by a registered nurse’, defined in subsection (2) as services ‘involving – (a) the provision of care, or (b) the planning, supervision or delegation of the provision of care, other than any services which having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse’.

The owner of a care home providing nursing services to residents is obliged by regulation to ensure that a registered nurse is working at the care home at all times.

The case before the Supreme Court concerned the funding of nursing care for residents who require some nursing care but for whom healthcare is not a primary need.

The respondent local health boards in Wales had decided to pay a flat weekly rate, following a survey which asked nurses to record and categorise the time they spent on different tasks: direct and indirect nursing care time, non-nursing care time and other time (which included stand-by time, paid breaks and time receiving supervision). The weekly rate excluded payment for time in the last two categories on the basis that these services fell within the exception in s. 49(2).

The decision of the Boards to interpret s 49(2) in this way was challenged by 11 owners and operators of care homes in Wales, and all (save one) of the Welsh local authorities were joined as interested parties.

The High Court quashed the decision, holding that the Boards should fund all the services in fact provided by a registered nurse.

The Boards conceded that they should have covered nurses’ stand-by time but appealed the finding in respect of services which need not have been performed by a registered nurse.

The Court of Appeal by a majority allowed the Boards’ appeal. The local authorities then appealed to the Supreme Court.

The Supreme Court unanimously allowed the local authorities’ appeal. It held that the Boards had misinterpreted s. 49(2) and that their decision must be quashed and re-taken in the light of the guidance given in the judgment. Lady Hale gave the only substantive judgment.

The Deputy President said the background to the introduction of section 49 was the “glaring anomaly” that nursing care was either provided free by the NHS or bought in by the local authority or residents depending on where it was provided.

“It was clearly intended to shift the boundary established by the Coughlan decision further in the direction of NHS funding. But the question remains whether ‘nursing care by a registered nurse’ covers everything that is done by a registered nurse in a care home, as it would in a hospital or other health service setting or (probably) in the patient’s own home, as the appellant local authorities contend, or whether it covers only some of what she does, as the Health Boards contend. This turns on the meaning and purpose of the concluding words in section 49(2): ‘… other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse.’

Lady Hale said that if Parliament had wanted to restrict the definition of ‘nursing care by a registered nurse’ to tasks which could only be performed by a registered nurse then it could and would have said so. Equally, if it had wanted to prohibit local authorities from paying for anything done by a registered nurse in a care home, it also could and would have said this. It did not.

Instead s. 49 began with the broad concept of ‘any services provided by a registered nurse’ and then limited those services in two ways.

The first was to services which ‘involve’ the care of residents ie looking after them, including personal and social care.

The second was to exclude services which ‘having regard to their nature and the circumstances in which they are provided do not need to be provided by a registered nurse’.

“This clearly envisages that there will be circumstances in which some personal or non-nursing care will need to be provided by a registered nurse. Care which is associated with or ancillary to the nursing care which she is providing obviously needs to be provided by her,” Lady Hale said.

The provision of an overall, holistic, person-centred plan for each resident who needs some nursing care requires the nurse to engage in social and personal tasks as part of that care, the judge said.

Some caring tasks could not sensibly be parcelled up between nursing and non-nursing care. “It is a matter of fact what part of the care provided by registered nurses to residents who have a need for some nursing will fall within this definition; it may or may not be a substantial part of their care; but that is a matter for the decision-makers and not for us.”

Lady Hale said she would also accept the view that time spent on paid breaks and on receiving supervision was, however, a necessary part of providing the services registered nurses are there to provide.

The judge concluded: “In my view, therefore, ‘nursing care by a registered nurse’ covers (a) time spent on nursing care, in the sense of care which can only be provided by a registered nurse, including both direct and indirect nursing time as defined by the Laing and Buisson study; (b) paid breaks; (c) time receiving supervision; (d) stand-by time; and (e) time spent on providing, planning, supervising or delegating the provision of other types of care which in all the circumstances ought to be provided by a registered nurse because they are ancillary to or closely connected with or part and parcel of the nursing care which she has to provide.”

Lady Hale said: “It follows from this, and from the earlier concession that ‘stand-by’ time should have been included, that the Health Boards’ decisions were based on a misinterpretation of section 49(2) and must be quashed and re-taken in the light of the guidance given in para 44 of this judgment. Ideally, this should be a matter for negotiation between all the parties who are governed by the legislation and have an interest in the outcome.”