The payment on account of FNC from the Health Service was never intended to be an amount on top of what had always been paid, in full, by LAs for nursing care packages (to stabilise the nursing home market, for instance!). It was the identification of an amount the NHS should pay, to be deducted from the existing full costs liability of the authority (or a self-funding and contracting client), and hence reduce the basis on which any charge to the LA-supported client was then calculated.
The bands of nursing care are a flat rate way of quantifying the NHS”s share of the home”s fees, as opposed to the LA”s share, and the amount is referable only to ‘registered nurse nursing care’ as defined by central government and determined by PCTs. It does not and is not supposed to cover the associated personal care done by care assistants under the supervision of the Registered Nurse. That bit of the package is still for the LA to fund. The March 2003 guidance makes this clear.
The amounts provided by central government for each FNC band make no claim to be a determination of how much the nursing care should actually cost, so far as the provider is concerned. So the fact that the nursing input required is in a particular case, in fact more costly than £120 a week, only becomes an issue if the home wants to hold out for more, or the LA wants to argue with the PCT about the determination of the banding.
The banding is not for the homes to do – unless PCTs have lawfully contracted out this function, under s23 NHSA 1977, or through the powers given in the Delayed Discharges legislation (see s1(3) Community Care (Delayed Discharges etc.) Act 2003). It is for the PCT to do, with input, of course, from the homes. The fact that the matrons in nursing homes think that current occupants are High or Medium RNCC is of relevance, even great relevance, but the decision is for the RNCC nurse alone, in the absence of formal and lawful delegation.
Contracting for FNC
The recent (March 2003) government guidance suggests that the LA will have to pay any shortfall required by the nursing home, on the footing that it will be for personal care. A scenario we can envisage is as follows: the home justifies the greater expense signalled by a hike in nursing home prices, by reference to the cost of nursing care; the local authority legitimately says that it can no longer legally contract for what is in fact registered nursing input; the PCT will say that the only stuff which actually counts as RNCC not able to be bought by the LA, is that which its FNC nurse has identified, as such.
Therefore beds will remain blocked if nursing homes still managing to survive in the market, despite the difficulty of finding nurses, continue to be able to drive prices up because of the strength of their market position, since so many other homes have closed. Delayed discharges will continue, unless
- a) most nursing homes are willing to take the hit and continue to provide for less than it costs them to do so (– unlikely in view of the Fair Price case in Lincolnshire, but possible, in view of widespread distaste for matters legalistic, in the care industry. . ..) or
- b) (if they are wise), homes present the greater expense of such packages as attributable to the greater amount of personal care and unregistered care assistant time needed by very needy patients, (in which case the LA has to pay the going rate, perhaps using some of the grant monies paid on account of the fines, for paying the real cost of care. . .)
- c) or (if they are kind as well as wise) homes join forces with the LA to argue that the nursing needs of at least some patients are actually such as to justify the person’s being accorded NHS continuing care status, under which the PCT where the person is registered with a GP will have to pay the whole price, and not just £120. . .OR perhaps using some of their discretion to make s28A transfers of money to the LAs, to pay the higher social care fees they are being faced with from nursing homes.
That decision as to level of FNC vs Continuing NHD health care, can be challenged by anyone affected personally, under the IRP system set up for FNC and Continuing Care determinations. Separate informal local arrangements should be in place for local authorities to do their fair share of challenging on this count too, unless they are to be allowed to use the IRP process too, which does not seem to be what the complaints guidance envisages.
The way forward
As of now, LAs have no legal power to purchase the RNCC element identified for each resident. LAs can only contract for the non RNCC care assistant time, the board, personal care and the accommodation. PCTs have to contract and pay for the other bit, unless they have properly delegated this function to the LA under a s31 Health Act partnership agreement, in which case the LA commissioner wears two hats and can buy RNCC nursing as well as personal care and the rest of the package, under model A arrangements as suggested in the guidance.
So in setting an authority’s Usual Rate for placements, LAs can only, and must, in our view, set a rate for those bits, and not the full price of the nursing home placement, which is no longer their concern. The PCTs are liable in law to get the money applicable to each self-funding person, or on account of each LA person, to the homes.
The March guidance from central government suggests as follows: ‘Councils and PCTs may wish to use an average cost figure of £85 per person per week for the basis for discussion as to the total funding package for a person’.
If this advice were to be regarded as binding, it would mean that the residential and personal care costs for nursing care clients would be lower than that for some people in the higher dependency but still residential care beds where no nursing is given.
We think that this splitting of the liability will rapidly introduce fees for bands of nursing care. Under the NAA, before the change in the law, the LA had to contract for the whole of the package for which it was responsible (see s26 NAA). This gave an appearance of authorities controlling the overall price, although as the Fair Price case shows, it is in fact supply and demand which holds the key to that rate. Now however, the local authority sector has no way of limiting the overall price, and there is thus no control of the overall amount, other than the market. If the LA maintains that there should be a fixed rate for accommodation and personal care (eg £xxx for residential care packages + £FNC banding on top) that will lead to differentials according the banding. If the LA maintains that there should be a fixed rate overall, then the authority would be getting the advantage of lower personal care costs in cases where clients had been banded High for nursing needs. Why should the authority get the advantage, when it is the home that has to do the work and the logic of someone’s needing a lot of nursing is that they will usually also need more, rather than less personal care than someone with lower nursing needs?
Keeping the Local Market stable
Government guidance published in March on commissioning post-April 2003 also says that for existing residents, the total funding package for all councils” supported residents in a particular care home, including NHS FNC rates, should be at least the same level now as it was in March this year (before one even begins to think about increases for inflation, that is).
Authorities are taking this to mean that regardless of the RNCC band that people are given by the Nurse Determination, the overall amount being paid to each care home should not go down, which suggests that the homes are entitled to expect to be no worse off than before. This is consistent with the idea that it is only that which has been identified as RNCC which has to be paid for as nursing, and that the rest is automatically personal care. But it has led some homes into thinking that they can expect a guaranteed continued income, courtesy of the local authority. PCTs whose nurses regularly assess clients as middle band despite input from homes to the contrary, tending towards High Band, will eventually lead to authorities and homes being locked in this kind of controversy.
If one combines the confusion over what is meant here, with the general upward drive in nursing home fees nationwide, we can see intense problems arising. Taking the government line to its logical conclusion, a specialist home without a competitor locally could feasibly ask for £1000 a week for a complex placement in its home, and the NHS will only pay £120. If the authority has to pay £880 for this client, as a matter of law, it will be on account of the rest being attributable to personal care alone. Whilst the Choice of Accommodation Directions make it clear that unusually expensive accommodation must in fact be funded by the LA if it is the only way of meeting the client’s need and thereby discharging the duty, in this scenario the excess is not just because of the market grip on specialist care, but because the NHS presents itself as only prepared to pay £120. This becomes even more surreal now the Regulations are in force, which require provider homes to specify their nursing and accommodation charges separately from the rest of the service. The attribution of the rest of the costs above £120, merely to ‘personal care’ will become untenable. And the more specialist the need, the more likely it is that the specialist provider will have carefully justified the fee level, and they may well have identified and costed out the health care and medical and nursing input necessary for the client.
For those working under s31 arrangements, we can see the argument that the LA, wearing both commissioning hats, must pay up, or else risk being fined for responsibility for a deferred discharge. But a local authority not operating under delegated health service functions cannot, in our view, properly go ahead and commission its own limited bit of a package of care for a client known to need nursing, when it does not have confidence that the top slice of the package – the essential nursing care element for which the PCT must contract – is going to be in place in time and at the right level. And the fines are only triggered, if the only reason for deferred discharge is the fault of the local authority….
Unless PCTs understand that there is no legal underpinning to £120 being an absolute ceiling for what the NHS can legally pay to homes, and it remains a recommendation only, the government’s FNC and waiting lists policies will be bound to fail.
The absence of a legal ceiling of £120 is important, too, with regard to the guidance advice to ‘make up the difference’ as between pre- and post-FNC eras. For a start, we think that this advice glosses over the legal framework now in place. In our view, no LA ‘owes’ any care home a living, or a protected income per home, as such. If the statutory basis on which LAs were contracting has now changed, which it has, all they need do, under the law, is preserve the stability of the individual arrangements for placements for each client owed a duty under the NAA. It is because of the vista of mass notice-giving that we think the government has recommended that LAs must make up the difference between whatever FNC level is determined, and the amount the clients attracted for that home, before FNC came in, but we do not think that it is correct in law, to suggest that they have to do this.
On the other hand, if homes, as independent providers, are not offered enough to take the clients on, (and crucially, understand that they are not obliged to, because they do not owe the government or local government or the health service their services for less than they are objectively worth, unless they have agreed to accept less than a reasonable rate), then there will be no placements able to be made and hospital beds will remain blocked.
This will no doubt lead to LAs and PCTs getting together and providing their own nursing beds under joint arrangements, as is proposed in Hampshire, regardless of the greater cost per bed that this proposal entails. For Best Value purposes, it would be kind of convenient that only the Local Authority’s contribution to the placement would have to be taken into account for cost comparison purposes…
Conclusion
Homes will have to decide whether to hold out for a fair rate, or one standard nursing rate regardless of the level of nursing that the client comes in at. This is a commercial decision, but one which should be taken on an informed basis in light of legal developments.
LAs might decide to offer an LA ceiling rate, which when FNC is added to it, comes out less than homes were getting for that client before. Alternatively, they might follow guidance, and spend public money making up the difference on a home by home basis. Then again, they might assume that their previously agreed rate for nursing care, after deduction of the average £85, will provide a basis for a new residential care rate. Some will offer on behalf of PCTs, an overall flat nursing rate (say the £85 average) above a flat rate (say the lowest residential care rate they have traditionally offered, rather than a higher dependency rate), even when the nursing dependency levels have clearly been set down by the PCT as varying between clients in the homes. In these scenarios, we think that the majority of homes will be legally entitled to give notice regarding the care of those individuals, or simply not take them on, if new clients are concerned. Homes which may not be entitled to give notice will be
- a) homes under a rolling contract where the price clause allows the authority to set an overall rate notwithstanding the introduction of FNC
- b) homes whose contractual rights to give notice have been consensually limited to reasons excluding price disputes
Logically, we think that an authority”s usual rate for the bit it is liable for, from now on, should take into account different levels of need, for care not including registered nurse nurse care. That is, LAs should continue to pay different rates of residential care fees, according to dependency. We think that a person who needs RNCC (ie medium and high band people, not low) will logically need more care assistant time for a combination of personal care tasks and the actual carrying out of the Registered Nurse’s instructions, than someone who does not need RNCC.
The care assistant time involved for someone in the most needy residential category is logically comparable to the level of personal care someone would need if they were banded Low FNC, given that the descriptors say that in that band, one doesn’t actually ”need” nursing care.
That is why we think that the best thing to do, assuming that the market is already accepting the residential care rates of an authority, is to argue that an authority’s highest dependency residential rate is equivalent to Low Band FNC. Logically, this would mean that the Higher Dependency residential rate, less £40, was equivalent to a rate which would be likely to be more than ordinary residential care rates, but which could be said to reflect the extra personal care needed by a person at the borderline, regardless of what the ‘ordinary’ or standard residential rate is. The further FNC chunks (£35 more for medium and £80 more for High), would then represent a good approach for most homes for needier patients.