Judgment from the Supreme Court in Welsh Care Home Sector case

Posted by Sarah Whittle on
The Supreme Court has today handed down judgment in the case of R (on the application of Forge Care Homes Ltd and others) (Appellants) v Cardiff and Vale University Health Board and others (Respondents) [2017] UKSC 56.  The case involved all 7 Health boards and 21 local authorities across Wales. Today's judgment brings an end to the litigation started in 2014 by a number of care home providers who were seeking an increase in the payments made to them by the NHS for Funded Nursing Care. 

Blake Morgan represented the Health Boards in this case, who, having been successful in the Court of Appeal in defending their interpretation of section 49 of the Health and Social Care Act 2001, were responding to the appeal of that decision by the local authorities.  By the time the dispute reached the Supreme Court, the court was solely concerned with the issue of whether the NHS or local authorities (with means-tested contributions from clients) are responsible for paying for the work done by registered nurses in social rather than health care settings.

The Supreme Court opens its judgment with a statement that "The interface between health and social care is a difficult and controversial policy area".  In its judgment, the Supreme Court issues further guidance on the correct interpretation of the legislation, having decided that, not only was the interpretation adopted by the Health Boards incorrect, but the alternative submissions from the local authorities were also incorrect.  The Supreme Court has therefore taken their own stance on the meaning of section 49(2). 

The Supreme Court has stated that some caring tasks cannot sensibly be parcelled up between nursing and non-nursing care.  They do however also state that it is a matter of fact, and one for the decision makers, what part of the care provided by registered nurses will fall within this definition. 

The judgment concludes with a statement that the Health Boards’ decisions must be quashed and re-taken in the light of the guidance given the judgment and goes on to state that, ideally, this should be a matter for negotiation between all the parties who are governed by the legislation and have an interest in the outcome.

In practical terms therefore, there is still work to be done in ascertaining the correct rate to be paid by the NHS for Funded Nursing Care and, whilst today's decision helps to bring some clarity to that process, further consideration will need to be given to the judgment and its impact before any fresh decisions can be made.  

About the Authors

Sarah is an Associate in the Cardiff Litigation and Dispute Resolution Team who advises both private and public sector clients on a wide range of commercial and public law disputes.

Sarah Whittle
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029 2068 6135

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Allan is a partner in the Cardiff Litigation and Dispute Resolution Team with extensive experience of advising public sector clients, particularly in relation to judicial review and procurement challenges and private sector clients on a wide range of commercial and corporate disputes.

Allan Wilson
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029 2068 6107

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