Care home leader criticises million pound legal battle over nursing home funding as 'pathetic squabble'

The £1m legal battle between the local authorities and health boards in Wales as to who should fund nursing home fees, has been condemned by Care Forum Wales as a “pathetic and very expensive squabble”.

The case ‘Cardiff & Vale University Health Board and others v Ceredigion County Council and others’ which was heard in the Supreme Court last week, looked at whether the local health boards should only fund registered nurses in care homes when they provide nursing care or whether they should also fund them when they are giving social care, such as help with washing and eating. Judgement has now been reserved and the final decision by the law lords who heard the case will be made later this year.

Mario Kreft, chair of Care Forum Wales summed up the legal wrangle which has been running since 2015, by saying: “We have older people and many of them in the latter part of their lives, about four per cent of people aged over 80, need care in a residential or nursing home.

“There was a shortfall in the funding so we asked the health boards to look closely at the costs. As a result, it was decided there should be extra funding for those care home residents receiving nursing care through the local authority.

“That amounted to just over £20 a day and at the end of it the health boards decided that it was justifiable but that it should be funded by local authorities. The local authorities say otherwise.”

Residents in care homes in Wales with the highest level of need receive Continuing Health Care, completely funded by the NHS, or Funded Nursing Care (FNC) if they need some nursing care but it is not their primary need. Otherwise they are funded by the local authority or are self-funding.

When calculating Funded Nursing Care, local health boards in Wales calculate the funding they will provide for nurses for FNC residents by working out the amount of time the nurse will be providing nursing care and excluding the amount of time the nurse provides social care.

After local health boards set the FNC for the next five years back in 2014, a number of care homes requested the entire wages of registered nurses should be funded. In March 2015 Mr Justice Hickinbottom, ruled in their favour.

However the local health boards went to the Court of Appeal in February last year arguing the local authorities should foot the bill for the FNC funding and won.

A five-judge panel of the Supreme Court made up of Lady Hale, Lord Clarke, Lord Wilson, Lord Carnwath and Lord Hodge heard the case on Wednesday 26 April. It is estimated that the FNC being disputed totals around £250m a year

Mario Kreft, claims that the cost of the legal mire could have funded nursing care for 128 people for a whole year.

He added: “We estimate the local authorities and the health boards will have spent at least £1 million between on solicitors and barristers in the High Court, Court of Appeal and in the Supreme Court.

“By our calculations, this would have funded 128 people for funded nursing care for a year. Put another way, assuming fixed budgets, 128 people have lost out on nursing care.

“The bottom line is that the money should have been paid and should have been paid a long time ago, it’s crazy that we’re still in this situation where people are arguing.

“In fact, it is an outrage and an affront to the people who need the services and their families, to those people who are providing them and are working in the service.”

He believes the Welsh Government should have stepped in and “knocked heads together to make sure that we’re not spending huge amounts of public money in the courts in London”.

“The amount of money being spent on legal fees is ludicrous. The cost is eye-wateringly expensive. This money should have been spent on delivering front line care to people.

“The reality is that the money would be coming from the public purse, whoever foots the bill. The vulnerable people who need care aren’t in the least concerned which pot of public money the funding comes from. Independent providers across Wales are entitled to this money for providing the care of older people,” he said.