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Important Administrative Court case on the scope of s. 49 of the Health and Social Care Act 2001


On 11 March, 2015, Mr Justice Hickinbottom, sitting in the Cardiff Administrative Court, ruled that the Welsh Local Health Boards (‘LHBs’) had erred in setting the rate they pay for ‘funded nursing care’ (‘FNC’). This is paid is respect of residents of nursing homes, who have some need for healthcare but not a primary need (in which case the entirety of their care is funded by the NHS, following R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213).

The primary issue in the case, and the one on which the Local Authorities participated as interested parties, was the proper interpretation of the phrase ‘nursing care by a registered nurse’, which Local Authorities are prohibited from providing under section 49 of the Health and Social Care Act 2001. This section was enacted in order to remove the anomaly whereby nursing care was paid for by the NHS in all settings other than in care homes. It was common ground, therefore, that ‘nursing care by a registered nurse’ must be funded by the LHBs. However, in setting the FNC rate, the LHBs decided that ‘nursing care’ only included that part of a nurse’s time in which he or she is engaged in direct/indirect nursing care tasks, and not time where he or she engages in personal care tasks (such as washing and dressing) or for time spent ‘on standby’.

The Claimant nursing homes, supported by the Local Authorities, argued that this was a flawed interpretation of section 49 because, given that it is a statutory requirement for a registered nurse to be present in a nursing home on a 24/7 basis in order to meet the unpredictable needs of residents, providing that constant cover is, to use the statutory language, a ‘service’ which ‘needs’ to be undertaken by a registered nurse. During the course of argument, the LHBs conceded this, but argued that they were entitled, when deciding in their discretion what to pay for the service, to take into account the fact that Local Authorities fund the entirety of personal care and the consequent need to avoid double-recovery.

Hickinbottom J rejected these arguments, both on the law and on the facts. He considered that the services that LHBs are required to provide by way of FNC are effectively defined by section 49 and that for the LHBs to use their general discretion intending to defeat – or merely inconsistently with – the clear specific intention of Parliament with regard to the LHBs’ responsibilities for nursing care would be a clear abuse of power and contrary to the principles set out in Hazell v Hammersmith and Fulham London Borough Council [1992] 2 AC 1 and Crédit Suisse v Allerdale Borough Council [1997] QB 306. Further, this was not the approach that the LHBs had taken in fact.

The judgment is here.

Richard Gordon QC and Emily MacKenzie appeared for the Local Authorities as interested parties.