On February 4 the Court of Appeal rules handed down judgment in Forge Care Homes Ltd v Cardiff & Vale University Health Board – the case concerned the division of responsibility between the NHS and local authorities for ‘Funded Nursing Care’ (“FNC”) in Wales.

FNC is provided to care home residents who require some nursing care, but nursing care is not their primary need.

Briefing note on the FNC ruling for CFW members

CFW’s legal adviser, Alison Castrey, has produced a briefing note for members on the judgement (below). In it she says:

“In its judgment earlier this month the Court of Appeal partly overturned the previous decision of the High Court in Cardiff.  It confirmed the concession made by the Health Boards at the earlier hearing, that Health Boards will have to pay for nurses’ ‘standby time’ in addition to the current FNC rate. However, the Court of Appeal ruled that FNC does not extend to other non-nursing tasks carried out by a nurse, such as delivering personal care (where unconnected with nursing care).  Nurses’ time spent on these non-nursing tasks will, for the first time, now have to be taken into account by Local Authorities when setting fees (or paid by self-funders if no Local Authority is involved). 

“The Health Boards must retake the FNC fees decisions they made in 2014, finalise the ‘interim’ FNC decisions they made in 2015, and set the FNC rate for 2016/17, in each case following the principles set out in the Court of Appeal’s decision.  Local Authorities must take account of nurses’ non-nursing time not only when setting fees for 2016/17, but also  when finalising past years’ fees that have been put ‘on hold’ pending the appeal (or which have yet to be finalised for some other reason).  

“Laing & Buisson calcuated in 2013 that the ‘standby time’ was costing providers around £5.69 per resident per week, and the non-nursing time was costing providers around £21.64 per resident per week.  Since then, many nursing homes in Wales have had to increase what they pay nurses above and beyond normal wage inflation, because of the national shortage of nurses, and so these costs in 2014, 2015 and 2016 are likely to have been even higher than in 2013.  Whilst CFW recognises the challenge for both the NHS and local government (and therefore ultimately, for the Welsh Government) of financing the additional financial cost flowing from the Court’s decision, it welcomes the recognition that nursing home providers have for many years themselves borne a significant part of the costs of employing nurses to deliver 24/7 care. This is not sustainable.”