Important Court of Appeal decision concerning responsibility for FNC
Details
R (Forge Care Homes) -v- Cardiff& Vale University Health Board [2016] EWCA Civ 26 – (Funding in Care Homes)
The case concerned the extent of the liability of the NHS (through the Local Health Boards in Wales) for Funded Nursing Care (FNC). Of particular significance was the proper construction of section 49 of the Health and Social Care Act (HSCA) 2001. Although the case considered the Welsh legislation, the provision is substantially mirrored in England by section 22 of the Care Act 2014.
Facts
In 2013 the Local Health Boards (LHBs) in Wales established a new method of funding care for FNC residents within care homes.
It was the assertion of the LHBs that, under section 49 of the HSCA 2001, they were only obliged to fund provision of nursing care and not the provision of other services by way of social care (even if that social care is provided by a nurse). In light of this, the LHBs had established a flat rate payment to care homes on a per person per week basis tailored to reflect the estimated cost of the nursing element of their care.
In doing so, they had obtained a survey from a group of independent healthcare consultants which had proposed a FNC rate. This rate excluded any costs which the LHBs considered did not constitute nursing care within the meaning of section 49(2). This section provides that:
(2) In this section ‘nursing care by a registered nurse’ means any services provided by a registered nurse and 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 exclusions comprised such matters as routine personal care (e.g. help with dressing and eating), social care, general home management and administration, and time spent on ‘stand-by.’
The owners and operators of various care homes challenged the basis of this flat rate payment and the trial judge agreed, ruling that the LHBs’ decisions on funding FNC care were unlawful. The LHBs appealed this decision and the Court of Appeal was asked to determine the proper construction of section 49 of the HSCA 2001.
Issues
The judge at first instance had determined that, due the existence of a duty to ensure the presence of a nurse at a care home at all times (under Regulation 18 of the Care Home (Wales) Regulations 2002), the LHBs were erroneous in their construction of section 49(2) and were therefore unlawful in their decision.
The LHBs conceded that this duty did exist, and they should therefore be liable for the cost of any ‘stand-by’ time, but submitted that the excepting words in section 49(2) did necessitate a distinction to be made between those services required to be provided by a registered nurse and those services that did not.
The decision
The Court of Appeal ruled in favour of the LHBs. Laws LJ stated that it did not logically follow that because a nurse was required on the premises at all times that the LHBs were automatically required to fund all activities undertaken during this period. He asserted that the excepted words of section 49(2) HSCA 2001 did require a distinction to be drawn between different services provided by a nurse or nurses at a care home.
Laws LJ concluded that the provision in the Act does no more than ‘invite attention to a factual question: do this nurse’s activities in the care home need to be provided by a registered nurse?’ This, he stated, was a question of fact, not law. The Court further agreed that it would not be possible to adopt this approach on an individual case-by-case basis, and that it was, therefore, both ‘lawful and practically sensible for the LHBs to employ reasonable and informed estimates.’
Comment
The Court of Appeal judgment has definitively set out that it is the decision of the NHS – in the form of LHBs or CCGs – to determine what type of care does and does not need to be provided by a registered nurse. This has significant implications for NHS bodies and local authorities. According to this decision, the NHS is only obliged to fund the nursing care component of care by way of an FNC rate. Any additional costs over and above this, reflecting the social and personal care afforded to residents, will need to be provided by local authorities or, in certain circumstances, individuals themselves.
In England, it is the Department of Health that sets the FNC rate. We understand that the Department of Health is currently reconsidering the FNC rate in England and this decision is likely to impact upon how that rate is set.
There is a possibility that the decision will be appealed to the Supreme Court, so watch this space!
Read the judgment in full.
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