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Background

The Supreme Court heard the appeal (from [2016] EWCA Civ 26) on 26 Apr 2017. The panel consisted of Lady Hale and Lords Clarke, Wilson, Carnwath and Hodge. Judgment was handed down on 2 Aug 2017.

The claim was originally brought by the owners and operators of care homes in Wales against the Cardiff & Vale University Health Board and others who had reduced their funding of nurses to reflect the proportion of nursing time that is spent on social care.

This approach to funding was quashed by Hickinbottom J in the Administrative Court. The Court of Appeal allowed the appeal of the Local Health Boards, with Lord Justice Elias dissenting, on the basis that there is a legal distinction in the statute between medical and social care. However, the Court emphasised that making this distinction in practical terms may be difficult.

Lower courts

In the Court of Appeal, it was held that the Local Health Boards are not required to fund services which need not have been performed by a registered nurse. The Court of Appeal decision was discussed in the Case Preview.

The care homes appealed the decision to the Supreme Court.

Judgment

The Supreme Court unanimously allowed the appeal by the care homes, with Lady Hale giving judgment. Thus, the NHS, in the form of the Local Health Boards, will be responsible for funding all elements of the care provided by nurses.

The central issue was the interpretation and application of the Health and Social Care Act 2001, s 49. The case turns on the meaning and purpose of the concluding words in 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.”

If this clause were not present then it would clearly fall to the NHS and the Local Health Boards to fund the entirety of the nurses’ care provision.

The Local Health Boards and Secretary of State argued that consistently throughout the case law, the NHS has defined the limits of its own responsibilities under s 3(1) of the 2006 Act and that this should be respected. This is subject to challenge via the normal route of judicial review.

The care homes and local authorities argued that the Supreme Court should focus on the practical implementation of the approach to funding nurses by the Local Health Boards. They argued that the NHS must fund the presence of a nurse who is there to fulfil the legal or practical duties of a nurse.

Lady Hale did not accept this submission of the care homes and local authorities. She found that the Court should firstly interpret the restriction on what local authorities may provide and then impose an obligation on the NHS to fund that which the local authorities cannot provide.

At para 44, Lady Hale concluded that “nursing care by a registered nurse” included: direct and indirect nursing care that can only be provided by a registered nurse; paid breaks; time receiving supervision; stand-by time; and time spent providing, planning, supervising or delegating the provision of care which ought to be provided by a registered nurse because it is closely connected to the nursing care that nurse is already providing.

Comment

As per Lady Hale’s judgment, the appeal of the care homes was permitted. Thus the NHS is required to provide the funding for all elements of the care provided by registered nurses. On the facts, this will fall to the Local Health Boards.

This is essentially an extension of the concession made by the Local Health Boards in the Court of Appeal where they accepted that they were responsible for funding nurses’ stand-by time.

Lady Hale, at para 46, held that s 49(2) had been misinterpreted by the Local Health Boards. She quashed their decision and instructed that their approach to funding be re-evaluated with reference to para 44. She finished by encouraging all parties to work together to negotiate an outcome that is in line with the legislation.