In a decision handed down today by the High Court in Cardiff, Mr Justice Hickinbottom has ruled that the Health Boards’ FNC decisions made in 2014 were unlawful.
These decisions were based on the Boards’ decisions taken in 2013 (following the Laing & Buisson survey of nursing costs), which were also ruled as having been unlawful.
This is because the Health Boards used a definition of nursing care by a registered nurse that was legally incorrect. For instance, the Boards excluded ‘stand by’ time for nurses at night, and also time spent on paid breaks, receiving clinical supervision, and some of the time spent by nurses giving personal care. The Judge ruled that the Health Boards should instead have considered the legal requirement (under the Care Homes (Wales) Regulations 2002) for nursing homes to have at least one nurse working 24/7.
The effect of the Court ruling is that all seven Health Boards will have to take fresh decisions to set the FNC rate for 2014/15 and beyond. The Boards will also have to pay costs to the nursing homes (which were all CFW members) who brought the case.
In relation to the ‘inflation uplift mechanism’ used by the Health Boards (which linked increases for the next 5 years to the rise in NHS ‘Agenda for Change’ pay rates), the Judge ruled that this was not necessarily unlawful, especially if there was no evidence before the Boards at the time they made their decisions, that inflation pressures for nursing homes were substantially different than inflation pressures on nurses’ pay in the NHS.
It will probably be several weeks before the Health Boards take their FNC decisions again, as they will have to consider carefully what the Judge has said, in order to avoid the retaken decision being unlawful as well.
It will take a while for the practical aspects of the judgment to become clearer e.g. whether the Boards will continue to set one FNC rate that is the same across Wales; whether they will make a 5 year decision (i.e. using an inflation uplift mechanism) once they have sorted out the base figure in accordance with the judgment; and any knock-on effect for CHC and / or local authority fee setting. The Health Boards have also indicated that they are considering an appeal against the Court decision.
We will update members once there is any further news. In the meantime, we anticipate that Health Boards will continue to pay the FNC rates in effect immediately before the judgment was published, on an interim basis pending taking the decisions afresh for both 2014-15 and (presumably) for 2015-15 as the new financial year is imminent.