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This case concerns the distinction in funding between nurses who provide only nursing care and those who provide nursing care in addition to social care. The issue at hand is whether the NHS is required to fund the latter or, alternatively, if the funding is the responsibility of local authorities.

Background

The original claim was brought by the owners and operators of care homes in Wales. The respondents were the Cardiff & Vale University Health Board & others.

The care homes made their claim because the Local Health Boards (LHBs) in Wales had calculated the funding they will provide by approximating, and then excluding, the amount of social care being provided by nurses. The LHBs argue that residents of care homes who require some nursing care but where social care is their priority, should have that social care funded by local authorities.

A number of care homes have challenged that approach, seeking to establish that the NHS is obliged to fund the entirety of the nurse’s employment.

In the Administrative Court on 11 Mar, Hickinbottom J quashed determinations of the LHBs as to the adjusted rate at which they would pay for the provision of nursing care to certain residents in care homes.

Arguments before the Court of Appeal

For the LHBs (the Appellants):

The LHBs argue that they are only responsible for funding the nursing care and are not responsible for funding the social care provided by nurses. The LHBs accept that it is difficult to distinguish precisely the ratio of work but that this is a matter for the judgement of the LHBs. The Health and Social Care Act 2001 (the HSCA), s 49(2) states that “‘nursing care by a registered nurse’ 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.” Therefore, this excludes the social care provision element from the LHBs’ responsibility.

For the owners and operators of care homes in Wales (the Respondents):

It is almost impossible, and certainly not productive, to “atomise” the tasks performed by a nurse in order to distinguish between medical and non-medical care. If social care is excluded from the services funded by the LHBs and the local authorities are reluctant to pick up responsibility for paying for this element then nursing homes may be inclined to minimise nurses’ provision of holistic and integrated nursing and social care support. There is also considerable time spent by care assistants working on nursing tasks, which is currently funded by local authority budgets. It seems that the NHS are opening up a whole raft of debate and uncertainty in trying to distinguish between nursing and non-nursing care. “The NHS Plan: The Government’s Response to the Royal Commission on Long Term Care”, s 2.11 states that nursing care should be provided free of charge and that “the NHS will meet the costs of required nurse time spent on providing, delegating or supervising care in any setting”. This much wider definition of nursing includes the social care element.

Judgment in the Court of Appeal

Lord Justice Laws permitted the appeal. He found that s 49(2) establishes a distinction between medical and social care provided by nurses which enables this issue of funding to arise. This case is really one of fact and not law. On the law, the two types of care should be funded by the LHBs and the local authority respectively. On the facts, this may be difficult to implement but legally the distinction exists.

Lord Justice Elias did not permit the appeal as the LHBs have not adopted a lawful approach in fixing the FNC rate. Disagreed with Lord Justice Laws on the construction of s 49(2) which he says is, firstly, poorly drafted and, secondly, does not distinguish the care provision into the two parts of medical and social care.

Lord Justice Lloyd Jones: Appeal permitted with no further comment.

The issues before the Supreme Courts

Whether there is a distinction between the medical and social care provided by nurses and whether the NHS is required to fund both.