Who Pays? Defining the boundary between NHS and social care - DAC Beachcroft

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Who Pays? Defining the boundary between NHS and social care

Published 11 February 2016


  • By a majority of 2:1, the Court of Appeal has given judgment in the case of Forge Care Homes. At issue was who pays for “social care” tasks carried out by a registered nurse in a care home for residents who are eligible for Funded Nursing Care (“FNC”). The Court ruled that the responsibility for funding the social care tasks of the nurse’s role falls on local authorities, not the NHS;
  • Some services need to be provided by a nurse and some do not, having regard to (1) the nature of the service, and (2) the circumstances in which they are provided. It is for the NHS to determine what requirements are reasonable to provide under FNC;
  • Whilst this case involved Welsh legislation the case has similar application in England;
  • Permission has been sought to appeal to the Supreme Court.


This case concerned the provision of care to individuals who were eligible for FNC. 

In a care home with residents who are eligible for FNC, the provider is required to have a nurse on duty to provide the nursing aspect of care. However, when the nurse is not providing nursing care, she will commonly undertake tasks that more usually fall under the remit of “social care”.

In the High Court, Mr Justice Hickenbottom ruled that if the home requires continuous nursing presence to meet any health needs that arise, then the NHS should fund that presence irrespective of whether the nurse carried out social care tasks. The Court of Appeal disagreed, concluding it was lawful for the NHS to seek to apportion the cost of this provision between the NHS and local authorities, although the judges disagreed how this could best be achieved.


  • Tasks undertaken which are not required to meet a nursing need, may be excluded from the FNC rate;
  • There are likely to be further funding disputes as NHS and social care budgets tighten.


Paul McGough

Paul McGough


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