Forge Care Homes Ltd & Others v Cardiff & Vale University Health Board & Others [2016]

Forge Care Homes Ltd & Others v Cardiff & Vale University Health Board & Others [2016]

Keywords: Nursing Care, Integration

FACTS:  An ongoing dispute in Wales between local authorities and the NHS about the basis on which the NHS pays for Nursing Care under FNC arrangements in Care Homes.

The core of the case concerned the  proper construction of s.49 of the Health and Social Care Act 2001 which prohibits local authorities from providing nursing care provided by a registered nurse which means “any services provided by a registered nurse…” “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 Health Boards took the position that they are responsible for funding only the provision of nursing care (i.e .medical tasks) carried out by registered nurses and that the provision of social care, even where tasks are carried out by a registered nurse, is the responsibility of local authorities. Local authorities took the position that the NHS is responsible for the whole cost incurred by a home in employing a nurse to attend full time (as required by registration regulations).

Essentially on the grounds that Care Homes could not choose to have nurses attend only for the time required to carry out nursing tasks, the lower court had ruled that the Health Boards were responsible for the full cost of having the minimum number of nurses required by registration regulations present and working at the home all of the time. This would have meant that Health Boards were required to pay for the full costs of employing nurses, regardless of the fact that nurses might well spend some of their time carrying out social care or non registered nurse tasks.

During the hearing in the lower court, the Health Boards conceded that they had erred in excluding stand-by time, accepting that the presence of a nurse in the care home at all times does constitute a service which does need to be provided by a registered nurse.

However they continued to contend that they were entitled to pay a rate below that of the full cost of employing registered nurses on the grounds that the wording of s.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” should be interpreted as meaning that local authorities should pay some contribution towards the nursing costs to account for those services provided by a nurse which did not need to be provided by a nurse.

Reversing the judgment of the lower court, the Court of Appeal held that it did not follow that the Health Boards were responsible for the full cost of employing a nurse. Thus they were entitled to discount their contribution to the extent they judged to be right to account for nurses also carrying out social care or non registered nurse tasks (i.e. not however low they fancied, but the rate that they judged to be referable to the proportion of non-nursing tasks).

This conclusion was reached on the basis that: “The provision plainly contemplates that some services need to be provided by a registered nurse and some do not. The distinction is drawn by reference to two matters: the nature of the services, and the circumstances in which they are provided.” (para. 29)

ANALYSIS: The case concerns the law in Wales. However, the virtually identical wording of s.22(8) Care Act 2014 means that the ultimate outcome of this case will effectively also determine how the English version is to be interpreted. The exact position of this dividing line between health and social care is estimated to make a difference of £250 million annually across the UK. Given current budgetary pressures, both sides can be expected to pursue the battle. Consequently, this decision of the Appeal Court is unlikely to be the final word on the subject. We await further developments.

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