Court of Appeal decision regarding Funded Nursing Care costs - positive decision for the NHS

The Court of Appeal (CA) have recently been called upon to pass judgment on what is covered by and who is responsible for payments relating to Funded Nursing Care (FNC). The judgement in R (Forge Care Homes) v Cardiff and Vale University Health Board and Others [2016] looks carefully at the ongoing and controversial issue of what is health and what is social care. The case involves Welsh legislation but the CA observed, and the Department of Health accepted, that this would also apply in England.

In summary, this case relates to the issue of who should pay for the cost of a registered nurse in a care home when those nurses are not providing the healthcare (required and paid for by the NHS as a result of FNC) 100% of their time. Although care homes require a registered nurse on site not all their time will be spent providing healthcare. Time may be spent providing social care or undertaking management and administration when not providing healthcare. 

The decision
At first instance the judge ruled that the cost of the nurse while carrying out social care was the responsibility of the NHS on the basis that the nurse needed to be there 24 hours a day in order to meet a health need. If there was a health requirement for the nurse to be there then the NHS should pay, even if during their shift social care was carried out too.

The CA disagreed. They decided that the question was one of fact and not of law. They considered that the proportion of the tasks performed which constituted social care was the responsibility of local authorities. The basis of FNC is to draw a distinction between the services provided on the basis of whether the actual task is a social care task or a healthcare task. On this basis, the local authority’s argument that everything the nurse does must be a health task just because she needs to be on the premises, did not make sense in the Court of Appeal’s view.

A good result for the NHS. This case will be of interest to CCGs but permission to appeal has been sought to take this case to the Supreme Court. Interestingly, the three CA judges did not agree on all aspects of this complex case so watch this space. In the meantime, if any CCGs are experiencing issues relating to their local authority and concerning continuing healthcare please do not hesitate to get in touch.

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