Councils in Wales win legal battle against NHS over care home nursing bill

Local authorities have won a three-year legal battle with the Welsh NHS over who should pay for nursing provision in care homes.

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The Supreme Court ruled on 2 August that health boards had 'misinterpreted' the legal position and that the parties should negotiate 'new terms'. The ruling follows a dispute which began in 2014 when health boards in Wales decided not to fund nurses for 'non-nursing care time', which included social care such as dressing and washing patients, stand-by time, paid breaks and time spent receiving supervision.

This was challenged by care homes and local authorities, who claimed they missed out on 'crucial funding'. They say they are now owed more than £30m in unpaid fees.

Councillor Huw David, Welsh Local Government Association’s (WLGA) spokesperson on health and social care, said: "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. The Judgment is very significant in this respect across Wales and the UK."

'National scandal'

Care Forum Wales said it was 'ridiculous' that the health boards could not have reached an agreement without going to court in the first place.

The court costs are thought to be upwards of £1m — money they say would have been 'better spent' on providing frontline nursing care for vulnerable and frail care home residents.

The care sector industry body is calling for the lost fees to be backdated so the care homes receive what they should have been paid years ago.

Mrs Jones really doesn't care 'one jot'

Chairman Mario Kreft, said: "The decision has finally given us clarity over who should pay the fees and has hopefully brought this sorry saga to an end.

"From the outset, local authorities supported the notion that the amount calculated by health boards should be paid to providers. In fairness to the local authorities, it was the health boards who did not want to engage in discussions to sort this out much earlier.

"It is a national scandal that we have had to endure this long and completely unnecessary legal dispute."

He added: "It really doesn't matter one jot to Mrs Jones who needs publicly funded nursing care who is actually going to pay for that care. All that counts to her is that she receives the care that she needs.

"The upshot is that privately-run care homes have been subsidising health boards at a time when they were already suffering from chronic underfunding. It flies in the face of fairness and natural justice.

"The people of Wales now expect us to work together so we can have a sustainable system that protects vulnerable people."

'It has never been about winners or losers'

The Welsh NHS Confederation, which represents health boards in Wales, has accepted the final ruling.

Vanessa Young, director of the Welsh NHS Confederation, says the outcome reflects the complexity of the case and the need for all parties to work together to agree the balance of responsibility for funding care in what is essentially a 'grey area' of the law.

She commented: "The Judgment is the conclusion of a long and complex legal case, which was instigated by a legal challenge from the care sector.

"It has never been about winners or losers, but about seeking clarity on complex points of law and how they apply to the funding arrangements for those receiving nursing care in a care home setting.

"Now it is time to look to the future, working closely with our partners in local government to deliver a long-term vision of integrated and sustainable health and social care in Wales."