Forge Care Homes Ltd & Ors v Cardiff & Vale University Health Board & Ors

Section 49 of the Health and Social Care Act 2001 allocates responsibility for nursing care by a registered nurse away from local authorities and to the NHS in Wales. The statutory exception requires a task-based assessment: whether a service needs a registered nurse depends on its nature and the circumstances in which it is provided. A nurse’s required presence at a care home does not convert every activity into nursing care. Health boards may use reasonable, informed estimates, but must preserve that distinction. The Court of Appeal majority allowed the appeal. Elias LJ agreed on the statutory distinction but would have required fuller funding of arrangements securing the nurses’ presence.

Care-home owners challenged funding determinations made by seven Welsh Local Health Boards for NHS funded nursing care residents. The determinations fixed a flat-rate payment based principally on time spent by registered nurses performing nursing tasks, excluding various social-care and other activities. Hickinbottom J in the Administrative Court quashed the determinations. The appeal concerned the proper construction of section 49(2) of the Health and Social Care Act 2001, including whether the provision permitted a distinction between nursing and social-care tasks and how the requirement for a registered nurse to be present under the Care Homes (Wales) Regulations 2002 affected the funding obligation.

1. Disposition. Laws LJ and Lloyd Jones LJ formed the majority and allowed the appeal. Elias LJ agreed that the statutory provision required a distinction between different tasks but disagreed with the majority on the funding consequences of a nurse’s required presence.
2. Statutory allocation. Section 49 of the Health and Social Care Act 2001 removes local authorities’ pre-existing powers and duties to provide or arrange nursing care by a registered nurse. The resulting responsibility falls on the NHS in Wales under section 3(1) of the NHS (Wales) Act 2006.
3. Task-based construction. Section 49(2) distinguishes between services provided by a registered nurse which need to be provided by such a nurse and services which do not. The inquiry depends on the nature of the service and the circumstances in which it is provided. It requires attention to the actual tasks performed. Clinical or medical tasks may require a registered nurse, whereas social, personal or administrative tasks may not.
4. Application and estimates. The question is factual and involves applying ordinary English terms to changing circumstances. Local Health Boards may use reasonable and informed estimates rather than assess every individual patient separately, but they must not replace the statutory task-based approach with a general allocation based only on the identity of the service provider. Practical difficulty does not justify a different construction.
5. Regulation 18. The requirement in regulation 18(3) of the Care Homes (Wales) Regulations 2002 that a registered nurse be present does not mean that everything done during that presence is nursing care for which the NHS must pay. The subordinate regulation cannot dictate the meaning of section 49. Stand-by may constitute a nursing service, but other work must be assessed according to its nature and circumstances.
6. Separate reasoning. Elias LJ considered that the LHBs had to pay in full for all arrangements necessary to secure the requisite registered nurses, including stand-by, meal breaks and nursing-related supervision and administration. Only any additional cost caused by the provision of social care could be allocated to the local authority or resident. On that approach the FNC rate remained unlawful.

1. Court of Appeal (Civil Division): [2016] EWCA Civ 26. Appeal allowed by a majority.
2. Queen’s Bench Division, Administrative Court: Hickinbottom J, decision given on 11 March. The determinations of the Welsh Local Health Boards fixing NHS funded nursing care rates were quashed.