“The Welsh Ministers must provide throughout Wales, to such extent as they consider necessary to meet all reasonable requirements – (a) hospital accommodation, (b) other accommodation for the purpose of any service provided under this Act. (c) medical, dental, ophthalmic, nursing and ambulance services, …. (e) such other services or facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as they consider are appropriate as part of the health service…”
“… [A] local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing – (a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them…”
“20.1 Staffing numbers and skill mix of qualified/unqualified staff are appropriate to the assessed needs of the service users, the size, layout and purpose of the home, at all times.”
“In general terms, those requiring nursing care from a registered nurse will have needs that mean they need to be cared for in an environment where a registered nurse is available on a 24 hour basis. This will usually be because of the complexity, intensity or unpredictability of their needs.”
“2.10 There can be no justification for charging people in care homes for their nursing costs. We will make nursing care free under the NHS to everyone in a care home who needs it. Both the report of the Royal Commission and the Note of Dissent to it supported this. It will require primary legislation and we will introduce this as soon as possible. The change cannot apply retrospectively but we intend to introduce free NHS nursing care in all nursing homes by October 2001. 2.11 In the future, the NHS will meet the costs of registered nurse time spent on providing, delegating or supervising care in any setting. This is a wider definition of nursing care than proposed in the Note of Dissent to the Royal Commission report, which suggested it should include those tasks that only a registered nurse could undertake. 2.13 Therefore people identified as needing nursing home care will no longer have to meet any of the costs for the registered nurses involved in their care, or for specialist equipment used by these nurses. Instead, the NHS will meet these costs. People who can afford to do so will still have to make a contribution towards their personal care and accommodation costs while in a nursing home.”
“(1) Nothing in the enactments relating to the provision of community care services shall authorise or require a local authority, in or in connection with the provision of any such services, to – (a) provide for any person, or (b) arrange for any person to be provided with nursing care by a registered nurse. (2) In this section ‘nursing care by a registered nurse’ means any services provided by a registered nurse and involving – (a) the provision of care, or (b) the planning, supervision or delegation of the provision of care, other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse.”
“Providers, local authorities and [LHBs] will need to agree a total funding package that takes into account the NHS contribution. When making arrangements for residential care for an individual under [section 21], local authorities are responsible for the remaining costs of accommodation and personal care. There should be no gap between local authority and NHS provision.”
“It is a fundamental requirement of this guidance that [LHBs] work closely together with key stakeholders, to maintain and/or develop integrated and streamlined arrangements for the commissioning, arrangement, and provision of care in care homes. The underlying principle is that the arrangement and provision of care for service users are not in any way affected negatively by the new funding arrangement.”
“The weekly payment for NHS [FNC] will be subject to review prior to1 April 2004 and yearly thereafter.”
“… [W]e were not trying to assess the time spent by registered nurses, but were trying to assess the time spent by registered nurses providing the care they were obliged to deliver either themselves (direct care) or, where they were able to delegate properly, those to whom they delegated (indirect care)…. … [I]t was the physical task based elements requiring registered nurse skills alone that were supported by the FNC payment.”
“Column 1…. The DIRECT NURSING TIME you spend on nursing tasks provided to individual patients…. ‘Nursing care’ tasks are those that relate to an assessed care need that requires an intervention to be conducted by a registered nurse, including individual care planning and updating clinical assessments. …. Column 3. INDIRECT NURSING TIME is nursing time which it is not possible to relate to individual FNC or CHC patients, and needs to be entered here (so that it can be apportioned between them, based on relative numbers of these patients in the nursing home). Indirect nursing includes time spent with care workers to prepare them to undertake nursing tasks delegated to them, as well as in subsequent mentoring and supervision, to ensure that the nursing care is delivered effectively in practice e.g. relating to management of continence, medication, nutrition, behaviour and hygiene standards. It also includes activities on behalf of a group of patients, or shared between them, such as overall planning. Time spent with the manager, matron in clinical supervision in relation to direct care (specific case assessments and other nursing care matters relating to patients) should also be included. In addition, as an exception, there might be also some direct time spent with each patient, which is too small to identify separately, and should be recorded here, such as medication round, providing direct support to many patients, but involving just a few minutes each. Column 4 and 5. There may also be some ‘NON-NURSING CARE’ tasks, which do not need to be undertaken by or delegated by a registered nurse. Column 4 covers PERSONAL and other SOCIAL CARE tasks. Time spent directly or in supervision of ‘routine’ personal care which has no specific nursing connection (such as helping patients with washing, dressing and other aspects of personal hygiene), and social care (such as supporting patients in eating, daily lining and social activities), should be recorded here. ANY OTHER TIME (other non-nursing and non-personal/social care time) should be recorded in Column 5. This includes time not spent directly or indirectly in supporting patients, such as nurses receivingclinical supervision not relating to direct care, or receiving other management supervision, or being involved in general home management and administration (broader than nursing). Any spare time on night shifts which cannot usefully be used in specific nursing or personal/social care tasks (stand-by time) should also be entered here.”
“We argued that as the FNC legislation talks of ‘nurse services’ rather than time specifically, if this specific service is defined as ‘providing overnight cover’, then there is some merit in the argument that this time and related costs should be eligible to be considered to be covered within the FNC payment. However the time to be included, over and above specific nursing time spent, would only be the ‘stand-by’ time. To the extent that nurses on overnight shifts are actually providing personal/other social care support (as they are available, with spare capacity to do so, to avoid excessive overall time and cost for the home), then this would still not be eligible. The argument for definitely including non-productive ‘stand-by’ time specifically within the FNC scope was not accepted by the FNC Review Group, during initial discussion. We therefore included an instruction to homes for this to be classified as ‘any other time’….” ii) With regard to the time nurses spent receiving clinical supervision, Laing & Buisson said (at page 19): “The instructions requested that time which nurses spend receivingclinical supervision from the manager or clinical supervisor (other than that which relates to discussions about residents’ care specifically) be recorded under [‘any other time’]. This is certainly essential time, over and above training, for the nurses to be able to undertake their roles effectively, so there is an argument for including it within nursing care time on these grounds, even if it only indirectly contributes to their support. ”
“Arguably all paid time on breaks ought to be treated as part of nursing care.”
“Members noted that the decisions of the Board are made without prejudice to any further discussions between the interested parties (including other Health Boards in Wales), and the Board, AGREED that it would revisit these decisions if alternative proposals emanated from this process.”
“(a) The nature and extent of any ‘gap’ between total costs of nursing accommodation and care, the proposed FNC rate/s and the amount paid by local authorities (‘gap costs’); (b) What agreement is to be reached between [Hywel Dda UHB], the three local authorities and providers (e.g. through self-funding residents, or through legitimate ‘top ups’ that do not fall foul of the rule that NHS care is to be provided free of charge at the point of delivery) to make provision to pay the gap costs during 2012-13, 2013-14 and 2014-15, in accordance with paragraph 37 of the [2004] Circular; … (d) The likely effect of inflation and other foreseeable increases during 2014-15 on the costs heads examined by [Laing & Buisson] during 2013; … (g) The mechanism proposed for reviewing FNC after31 March 2015 …”
“Our client would reiterate that it was agreed by the All Wales FNC Review Group that FNC is confined to the cost of providing direct and indirect nursing care (as defined by the [Laing & Buisson] report)… to those eligible for FNC. Our client accepts that these are the correct parameters for the consideration of the cost of FNC and that no other matters fall to be considered as FNC. We also reiterate that [CFW] was involved in the All Wales FNC Review Group process and was consulted about the parameters of the [Laing & Buisson] report, the findings of that report and the additional work undertaken. While the Claimants may not have had direct access to this process, the views of care home providers were represented … In any event, our client’s Board decision of26 September 2013 was clearly stated to have been made without prejudice to any further discussions which may take place between interested parties, with an agreement to revisit the decision if alternative proposals are forthcoming. Some preliminary discussions have since occurred and it is understood that further engagement is planned, although the form that this engagement will take is yet to be agreed. … As the minutes make clear, the Board’s decision of26 September 2013 was taken without prejudice to any further discussions. It is proposed that the Board will be appraised of the discussions which have subsequently occurred at its next meeting in November 2013.”
“Whilst I note you suggest… that the statements taken together constitute a legitimate expectation, with respect that is not the case, if, by that, you suggest that your clients have a right of action as a result… The decisions which have been taken by the Health Boards are perfectly clear in their terms. As we have been at pains to stress in previous correspondence, the process which has been adopted by our clients is not one where it is either obliged to or has agreed to proceed by way of formal consultation pursuant to any statutory obligation in that regard. Steps are being taken to facilitate discussions about wider issues you have raised with providers in the sector, including your clients and it is expected that both Welsh Government and local authorities will join those discussions. The outcome of the discussions may cause the Health Boards to review their recent decisions. There can however be no legitimate expectation on the part of your client that the decisions will be amended, as that would prejudge the outcome of the proposed discussions. Your clients’ proposed course of action You will appreciate from what is set out above that it is not accepted – if it is being alleged – that the Health Boards’ participation in the proposed discussions, properly gives rise to a legitimate expectation that the decisions taken will be reviewed.”
“I repeat that my clients have a legitimate expectation that what have been referred to as ‘non nursing care costs’ will be provided for, either by the Health Boards (whether through FNC or otherwise) or by local authorities, in their respective fee setting, for the three years in question and beyond. It is not the Boards’ ‘participation in the proposed discussions’… that gives rise to that expectation, but the combined requirements of the 2004 Directions as to the provision of nursing care, section 21 [of the 1948 Act] (in relation to local authorities), and paragraph 37 of the [2004 Guidance].”
“… committed to establishing whether further progress can be made on those matters you have raised by participating in discussions between those involved in the sector, rather than through formal consultation, which as you are aware, Health Boards are not obliged to undertake in the current circumstances.”
“I can confirm that the CEOs have now agreed to the proposal put to them recently, which I mentioned in my letter of 4 February…. [T]he mechanism provides an uplift to the FNC rate by the same average uplift as is applied to an A4C pay band of a scale five grade. The uplift is to be applied from1 April 2014 and will apply for the next 5 years, after which consideration will be given to whether a further review is necessary. Because the direct research with care homes was undertaken in April 2013 or thereafter and therefore the Laing & Buisson report reflected cost levels prevalent in 2013-2014, there will be no inflationary adjustment in addition to the rate fixed for that year.”
“Our definition is wider, not narrower, and goes beyond the definition proposed by the minority report by the two Commissioners who signed it, in that it provides a more expansive definition of what nursing care involves…. Our definition is not task-based.”
“In my experience, local authorities are not very interested in FNC and, similarly, the Health Board is less interested in the local authorities’ rates.”
“It was… agreed by the [LHBs] that it would be in the best interest of all parties in the Care Home Sector to find an acceptable mechanism to ensure that the weekly rate is maintained at an acceptable level over the medium term, rather than repeat this exercise on an annual basis.”