The Supreme Court decided how far the NHS, rather than local authorities or care home residents, must pay for registered nurses working in Welsh care homes. Section 49 of the Health and Social Care Act 2001 stops local authorities from providing or arranging “nursing care by a registered nurse”, but it neither covers everything a nurse happens to do nor only tasks which nobody else can perform. Lady Hale held that the Local Health Boards had misread that limit when fixing their weekly rate, so their decisions had to be quashed and taken again.
Why the weekly payment was disputed
In Wales in 2013 a care home resident might receive nursing care funded by the NHS alongside personal care funded by the local authority, the resident or both. A nurse might provide both types of care during a single shift.
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Residents who need some nursing, but for whom health care is not the primary need, receive “funded nursing care” from the NHS. The resident, the local authority, or both fund the rest of the care and accommodation. Between September and November 2013, every Local Health Board in Wales set the payment for that nursing care at a flat rate of £128.61 a resident a week. They used a Laing & Buisson survey in which nurses divided a shift into direct nursing care, indirect nursing care, non-nursing care such as dressing and washing, and other time, including stand-by, paid breaks and supervision. The Boards decided that the last two categories were outside section 49 and would not fund them. The rate was £27.33 a week lower as a result. Including that time was estimated to cost the Boards between £7 million and £13 million a year.
Eleven care home owners challenged the decisions. The Welsh local authorities, apart from Cardiff, effectively took over the case. The Secretary of State for Health intervened in support of the Boards. The case was argued throughout on the basis that there would be no funding gap: care which a local authority could not fund would have to be funded by the Boards.
The limit in section 49
Section 49 of the Health and Social Care Act 2001, headed “Exclusion of nursing care from community care services”, says that local-authority community care powers do not authorise or require an authority to provide, or arrange, nursing care by a registered nurse. That means services provided by a registered nurse and involving the provision of care, or the planning, supervision or delegation of care. It excludes 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.
Under the Care Homes (Wales) Regulations 2002, a home which provides nursing and also provides medicines or medical treatment must have a suitably qualified registered nurse working there at all times. The evidence was that residents needing nursing care will usually need a nurse available around the clock because of the complexity, intensity or unpredictability of their needs. The Boards accepted that stand-by time should have been included. The local authorities went further: if the nurse must be there, they said, the NHS should pay for all her time. The Boards said her work could be divided into tasks and that they were responsible only for the proportion which needed a registered nurse.
The courts below
Hickinbottom J quashed the decisions. He rejected the argument that section 49 covered only care which could be provided by a registered nurse, and accepted that it covered all services in fact provided by one.
The Court of Appeal majority held that a requirement for a nurse to be available did not bring everything the nurse did within section 49. It upheld the Boards’ position apart from their concession about stand-by time. Elias LJ would also have included the arrangements needed to secure attendance, such as breaks and supervision.
How the Supreme Court read the section
Lady Hale, with whom Lord Clarke, Lord Wilson, Lord Carnwath and Lord Hodge agreed, treated the question as one of interpretation before application. Parliament had not intended to leave the division of responsibility to the NHS. The earlier decision in Coughlan had allowed local authorities to provide some nursing within residential accommodation where it was merely incidental or ancillary to that accommodation and of a kind a social services authority could be expected to provide. Section 49 was intended to move that boundary towards NHS funding.
The statutory wording followed neither extreme. Services must involve looking after residents, but they are not confined to nursing care narrowly so called. The closing words then exclude services which do not need a registered nurse. Some personal or other non-nursing care will nevertheless need to be provided by her, particularly care associated with or ancillary to the nursing care she is giving. Where there is a reason for her to perform a caring task, that task cannot sensibly be split between nursing and non-nursing elements: Lady Hale gave the example of taking a resident to the lavatory. Preparing an overall care plan may also require her to undertake social or personal care so that she understands the resident’s needs.
Lady Hale therefore held that “nursing care by a registered nurse” includes time spent on care which can only be provided by a registered nurse, including the study’s direct and indirect nursing time; paid breaks; time receiving supervision; stand-by time; and time spent providing, planning, supervising or delegating other care which in the circumstances ought to be provided by a registered nurse because it is ancillary to, closely connected with, or part and parcel of the nursing care she must provide. Paid breaks and supervision qualify because they are necessary to the proper provision of that care.
She rejected the local authorities’ principal argument that compulsory presence makes every service performed while on duty the NHS’s responsibility. She also rejected the Boards’ exclusion of all non-nursing time. Some personal care needs a registered nurse and some does not; the simple division between nursing and personal care had distracted from that question. What portion falls within the definition is a matter of fact for the decision-makers. It may or may not be substantial. Although a purely task-based approach would logically require an individual assessment, Lady Hale agreed that the only practical solution is a rough and ready calculation based on what generally happens.
Verdict: The local authorities’ appeal succeeded unanimously. The Health Boards had to set the rates afresh using the categories identified by Lady Hale. The Court left the amount to the decision-makers.
