Supreme Court to hear row between Welsh councils and NHS over nursing care in care homes

The Supreme Court will next week hear a dispute between Welsh local authorities and NHS trusts over the funding of registered nurses in care homes.

The key issue in R (on the application of Cardiff & Vale University Health Board and others) v Ceredigion County Council and others UKSC 2016/0054 is whether the NHS (through Local Health Boards) is required to fund registered nurses in care homes only when they are providing nursing care or also when they are providing social care to certain residents.

The background to the case is that there are three categories of residents in care homes: those who require "Continuing Health Care", and who are therefore entirely funded by the NHS; those who require some nursing care but nursing care is not their primary need – they receive "Funded Nursing Care" (FNC); and those who have the lowest need and are entirely funded by the local authority or privately.

Local Health Boards in Wales have calculated the funding they will provide for nurses for FNC residents by an approximation of the amount of time the nurse will be providing nursing care properly so called, and excluding the amount of time the nurse will be providing social care.

A number of care homes challenged that approach, seeking to establish that the NHS is obliged to fund the entirety of the nurse’s employment. It is said that some £250m a year is at stake in the dispute.

In March 2015 Mr Justice Hickinbottom quashed decisions by the seven local health boards in Wales in 2014 setting the rate for funded nursing care for the following five years.

However, the local health boards won in the Court of Appeal in February 2016.

39 Essex Chambers said at the time that, in practice, the Court of Appeal's judgment meant amongst other things that it was for the NHS to decide what type of care did and did not need to be provided by a registered nurse, and only fund the former. The set added that local authorities and self-funders might need to pick up any shortfall where a nurse provided services that the NHS did not deem to be nursing care.

A five-judge panel of the Supreme Court – comprising Lady Hale, Lord Clarke, Lord Wilson, Lord Carnwath and Lord Hodge – will hear the case on 26 April.

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