Forge Care Homes Ltd & Ors, R (on the application of) v Cardiff & Vale University Health Board & Ors

The statutory scheme requires health boards to fund the reasonable nursing care which local authorities are prohibited from providing. The relevant question is not confined to identifying individual tasks that only a registered nurse could perform. It includes the reasonable requirement for a registered nurse to be working in a care home at all times where the regulations require that presence. A general funding discretion cannot be used to defeat the specific allocation of responsibility under the statutory scheme. A health board may determine how the service is provided and what reasonable price is paid, but it must not leave a funding gap. There is no general duty to consult on an FNC rate. Such a duty may arise from statute, binding guidance, a promise, an established practice or conspicuous unfairness.

The claimants operated care homes in Wales and challenged the funded nursing care rates fixed by the seven Welsh local health boards. The rates were calculated after a review which adopted a task-based interpretation of Health and Social Care Act 2001, section 49, excluding stand-by time and other categories of registered nurses’ working time.

The claimants argued that the approach unlawfully narrowed the nursing care for which the health boards were responsible, created a funding gap, and made the subsequent inflationary uplift mechanism unlawful. They also alleged failures to engage with local authorities and providers. The central issue was the proper division of responsibility between health boards and local authorities for nursing and other care in care homes.

1. Ground 1 succeeded. The 2013 and 2014 decisions fixing the FNC rates were unlawful and were quashed.
2. Section 49 of the Health and Social Care Act 2001, read with section 21(8) of the National Assistance Act 1948 and the wider statutory scheme, draws the boundary between local authority and NHS responsibility. Local authorities cannot provide nursing care by a registered nurse. If the authorities act properly, all reasonable care needs of a resident receiving section 21 assistance must be met by either the local authority or the relevant health board.
3. The general discretion under section 3(1) of the National Health Service (Wales) Act 2006 cannot be used to override the specific allocation of responsibility made by section 49. There is discretion as to the manner of providing the service and the reasonable amount paid, but not to avoid responsibility for the service itself.
4. Regulation 18(3) of the Care Homes (Wales) Regulations 2002 requires a registered nurse to be working at a care home at all times where the home provides nursing or medical treatment. That is a reasonable nursing requirement which can only be fulfilled by a registered nurse. The relevant health board must provide or pay the reasonable cost of that service, including stand-by time. Where more than one nurse is necessary under regulation 18(1)(a), the additional necessary service is likewise within the health board’s responsibility.
5. The FNC Review Group’s task-based approach, restricting nursing care to individual tasks which only a registered nurse could perform, was fundamentally flawed. The resulting decisions were unlawful whether the health boards adopted that approach or relied materially on the resulting report. Any calculation must avoid double counting and must exclude services which, having regard to their nature and circumstances, do not need to be provided by a registered nurse.
6. There is no general duty to consult on an FNC rate. Paragraph 6 of the 2004 Circular required close working with stakeholders but did not impose a formal consultation duty. The issues under Grounds 2 and 3 were, in any event, rendered academic by the substantive error in the base-rate calculation. The proposed uplift mechanism was therefore not separately determined on its merits.