R (on the application of Forge Care Homes Ltd & Ors) v Cardiff and Vale University Health Board & Ors [2017] UKSC 56

Welsh Local Health Boards set a flat weekly rate for funding registered nurses in care homes, excluding personal care and certain other time. The Supreme Court held this misinterpreted section 49 of the Health and Social Care Act 2001 and quashed the decisions.

Facts

The case concerned the funding of registered nurses working in social care homes in Wales. Between September and November 2013, every Local Health Board in Wales set a weekly flat rate of £128.61 per qualifying care home resident for nursing care, relying on a survey by Laing & Buisson. The survey divided nurses’ shifts into: (a) direct nursing care, (b) indirect nursing care, (c) non-nursing care (e.g. social care such as dressing and washing), and (d) other time (stand-by, paid breaks, supervision). The Health Boards excluded categories (c) and (d) from funding, resulting in a payment £27.33 lower per week than would otherwise have been paid.

Regulation 18(3) of the Care Homes (Wales) Regulations 2002 required care homes providing nursing to have a suitably qualified registered nurse working at the home at all times. The dispute concerned residents in the middle category of need: those requiring some nursing care but for whom health care was not a primary need (“Funded Nursing Care”).

Care home operators initially challenged the decisions, with Welsh local authorities (except Cardiff) effectively taking over the litigation. Hickinbottom J quashed the Health Boards’ decisions; the Court of Appeal, by a majority, allowed the Health Boards’ appeal (subject to a concession that stand-by time should have been included).

Issues

The central issue was the correct interpretation of section 49(2) of the Health and Social Care Act 2001, which excludes from local authority community care provision “nursing care by a registered nurse”, defined as services provided by a registered nurse involving the provision, planning, supervision or delegation 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.”

Specifically, the Court had to determine whether the NHS must fund all the time a registered nurse spends working in a care home, or only those discrete tasks that need to be performed by a registered nurse.

Arguments

Local authorities (appellants)

The local authorities argued that, given the requirement (under regulation 18(3) and as a matter of practice) for a registered nurse to be present at all times, the NHS must fund the entirety of her presence. They submitted the nurse’s time should not be “atomised” into discrete tasks. They accepted the NHS need not fund roles which happen to be done by a registered nurse but could be done by others (e.g. a manager’s role), nor over-staffing. A third argument was that personal/social care time, paid breaks and supervision time should be included.

Health Boards and Secretary of State for Health (respondents)

The respondents argued that a registered nurse’s time could be divided into discrete tasks and the NHS was only responsible for those needing a registered nurse. Government policy was that personal care should be means-tested social care; it would be contrary to that policy and absurd to require the NHS to pay for personal care simply because it was provided by a registered nurse. Their task-based approach promoted efficiency.

Judgment

The Supreme Court (Lady Hale giving the leading judgment, with whom Lord Clarke, Lord Wilson, Lord Carnwath and Lord Hodge agreed) unanimously allowed the appeal and quashed the Health Boards’ decisions.

Lady Hale traced the statutory background, including section 21 of the National Assistance Act 1948, the Court of Appeal’s decision in R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213, the Royal Commission on Long Term Care’s report (1999), the Note of Dissent, and the Government’s response in The NHS Plan (2000), which adopted a wider definition of nursing care than that proposed by the dissenters.

The Court rejected both parties’ primary arguments. The local authorities’ approach (that everything done by a required nurse must be funded by the NHS) ignored the concluding words of section 49(2), which clearly envisaged that some services provided by a registered nurse would fall outside the definition. Equally, the Health Boards’ narrower task-based approach was wrong: had Parliament intended to restrict the definition to tasks only a registered nurse could perform, it would have said so.

Section 49(2) limits the broad concept of “any services provided by a registered nurse” in two ways. First, the services must involve the provision, planning, supervision or delegation of “care” – though this need not be nursing care; it could include personal or social care. Secondly, services which do not need to be provided by a registered nurse are excluded. However, this clearly envisaged that some personal or non-nursing care will need to be provided by a registered nurse, particularly where it is associated with or ancillary to nursing care.

Lady Hale gave examples: taking a resident to the lavatory may require all associated tasks to be done by the same person; producing a holistic, person-centred care plan may require engaging in social and personal care tasks to understand needs.

The Court held that “nursing care by a registered nurse” covers: (a) time spent on nursing care that only a registered nurse can provide (both direct and indirect); (b) paid breaks; (c) time receiving supervision; (d) stand-by time; and (e) time spent providing, planning, supervising or delegating other types of care which in all the circumstances ought to be provided by a registered nurse because they are ancillary to, closely connected with, or part and parcel of nursing care.

The Court accepted that, although whether care falls within the definition is a question of fact, the only practical solution is a rough and ready calculation based on the generality of what occurs.

Implications

The decision clarifies the boundary between NHS-funded nursing care and means-tested social care in care home settings under section 49 of the Health and Social Care Act 2001 (and, by extension, the very similar provisions in section 47 of the Care Act 2014 and section 47(10) of the Social Services and Well-being (Wales) Act 2014).

The decision rejects a narrow task-based atomisation of a registered nurse’s time as well as a sweeping rule that all her time must be NHS-funded. Instead, ancillary and connected personal care undertaken by a registered nurse in the course of nursing duties falls within section 49(2), as do paid breaks, supervision and stand-by time.

The decision is significant for Local Health Boards, NHS bodies in England, local authorities, care home operators, and care home residents (particularly self-funders and those contributing to their care). It shifts the funding boundary further towards the NHS than the position established in Coughlan, in line with Parliament’s evident intention in enacting section 49.

Lady Hale acknowledged the practical difficulty of precise apportionment, indicating that ideally the matter should be resolved by negotiation between the parties governed by the legislation. The case leaves the actual factual assessment – what proportion of a nurse’s time falls within the definition – to be determined by the decision-makers in light of the Court’s guidance, recognising it may or may not constitute a substantial part of overall care.

Verdict: Appeal allowed. The Local Health Boards’ decisions setting the flat-rate weekly payment of £128.61 were based on a misinterpretation of section 49(2) of the Health and Social Care Act 2001 and were quashed, to be re-taken in light of the guidance set out in paragraph 44 of the judgment.

Source: R (on the application of Forge Care Homes Ltd & Ors) v Cardiff and Vale University Health Board & Ors [2017] UKSC 56