In responding to today’s Supreme Court Judgment, the final ruling in relation to Funded Nursing Care (FNC), the WLGA is satisfied the parties involved can now move forward on the outcome. This case represents complex and challenging issues brought to test key legal principles. While it might appear to be simply a technical dispute between two public bodies, rather the case represents a test of important legal arguments that have the potential to impact all service users in care homes, both in Wales and across the UK.
To stress, today’s Judgment stems from a case brought by Forge Care Homes in 2014. It was brought to bring clarity to fundamental legal principles in relation to the funding of the nursing element of social care. At the heart of this is Section 49, Health and Social Care Act 2001. The meaning of the wording of S49(2) has been fully recognised by the Supreme Court as being central to Health Boards and local authorities in Wales, and to thousands of care home residents who fund or contribute to the funding of their own care, as well as to those in England where the legislation is set in similar terms. Importantly, the Supreme Court notes that there are no other decided cases which have examined these legal arguments.
There are three categories of residents in care homes: (1) those who require "Continuing Health Care", and are therefore entirely funded by the NHS; (2) those who require some nursing care, but nursing care is not their primary need, and receive "Funded Nursing Care" (FNC); and (3) those who have the lowest needs 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 supported by local government have challenged that approach, seeking to establish that the NHS is obliged to fund the entirety of the nurse’s employment. This is the substantive matter which was before the Supreme Court to answer.
Councillor Susan Elsmore (Cardiff) WLGA Deputy Spokesperson for Health and Social Care (Adult Services) commented that,
“Ultimately local government, the NHS and Welsh Government will need time to reflect on the Judgment and consider the practical implications of implementation. Local government will seek to work with partners across the sector with the common purpose of delivering important services to residents. We know this ambition is also shared by the NHS and Welsh Government. It is now vital with this Judgment that we move on and seek a sustainable model of funding for this core service into the future. The public deserves no less.
We are working closely with colleagues in Welsh Government and the Welsh NHS Confederation to coordinate next steps. The WLGA seeks a measured and mature response that recognises that each local authority will need time to consider the judgment and then to liaise with the other authorities, including Health Boards, Welsh Government and nursing home providers to determine the practical implications of the Judgement.”
Councillor Huw David WLGA Spokesperson on Health and Social Care added,
“The Judgment is about bringing clarity to a contested funding environment that has led to the need for precision on a fundamental point of law. At the heart of this is a grey area where in the absence of a definitive legal position two different systems have attempted to come forward with their own distinct interpretation of the law. Today’s Judgment is very significant in this respect across Wales and the UK.”
The case was instigated by a legal challenge from the care sector in 2013, who then pursued the matter through the courts where local authorities were named as ‘Interested Parties’.
By continuing to work together closely and constructively across the public sector with partners in the NHS and Welsh Government, local government is committed to delivering the common goal of a sustainable resident-centred vision of social care.
For more information contact: Stewart Blythe