In Forge Care Homes Ltd v Cardiff & Vale University Health Board, Cardiff City Council and Others [2016] EWCA Civ 26 the Court of Appeal was concerned with the respective funding obligations of local authorities and NHS Local Health Boards with respect to the cost of the provision by registered nurses of nursing care to residents in care homes who require some nursing care, but for whom this is not a primary need.  At issue was the proper construction of Section 49 of the Health and Social Care Act 2001, which is applicable in Wales and England and prohibits local authorities from providing nursing care by a registered nurse.  The case arose in circumstances where the registered nurse recruited by the care home provided both nursing care, in the sense of medical and clinical care, and social care, in the sense of care of a kind which does not depend upon the skill and experience of a registered nurse and can be provided by non-specialist care workers.  The Court of Appeal ruled that a distinction required to be drawn between these two types of services, with the former being paid for by the NHS and the latter by the local authority.  Lord Justice Laws said that it does not follow from the fact that a nurse needs to be on call at all times that everything she or he does on duty has to be treated as a service which needs to be provided by a registered nurse.  What matters is the actual work being done.  The question is as to the various and changing factual circumstances and the extent to which the registered nurse’s activities and individual tasks in the care home need to be provided by a registered nurse.  Lloyd Jones LJ agreed.  Elias LJ dissented.  Therefore the NHS can lawfully set the rate they pay to care homes to reflect time spent, directly or indirectly, on nursing tasks that have to be carried out by a nurse, but excluding time spent on social care.  The latter has to be funded by the care homes or local authorities, or, subject to their means, the residents of the care homes.

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