Summary: Ms X complained about the way the Council decided to place her mother, Mrs Y, at Finborough Court care home, Stowmarket. Ms X also complained about Finborough Court’s decision to appoint her sister as Mrs Y’s essential care giver. There was fault causing injustice when the Council failed to adequately communicate with Ms X or involve her in its initial decision-making. The Council’s apology and improvements since Ms X’s complaint remedies her injustice.

The complaint

1. Ms X complained about the way the Council decided to place her mother, Mrs Y, at Finborough Court care home, Stowmarket. She said the Council failed to involve her in the decision and it was against Mrs Y’s wishes. This caused Ms X worry and distress.
2. Ms X also complained about Finborough Court’s decision to appoint her sister as Mrs Y’s essential care giver. As a result, Ms X said she is not kept updated about Mrs Y’s condition, her visits to Mrs Y were restricted to half an hour, and she could not visit Mrs Y in her room.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
6. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
7. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council or care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

8. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• Government guidance on care home visiting (now withdrawn) (Published 22 July 2020).
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Government guidance

10. During the COVID-19 pandemic, the Government advised visitors to make arrangements with care homes before visiting. This was so care homes could manage the number of visitors and ensure safe practice. The Government also advised:
• The duration of a visit should not be limited if safe practice can be maintained.
• Visits should take place in a room most practical and comfortable for the resident. A specific example was given that dementia sufferers may be more comfortable in their own room with familiar belongings.
• Residents should be supported to have an essential care giver who can visit for companionship or to help with care needs. Essential care givers should be able to visit even during periods of isolation or a COVID-19 outbreak.
• Residents should be supported to have visits out of the care home, in accordance with reasonable precautions and COVID-19 testing.
• Care homes should have a policy setting out precautions taken to control COVID-19 infection during visits.

Essential care givers

11. Where a resident lacks capacity to choose their essential care giver, the care home should discuss it with their attorney or deputy and the resident’s family, friends, and others identified in their care plan. A person can only be nominated as essential care giver if this has been decided to be in the resident’s best interests.

What happened

12. I have detailed below some of the key events leading to Ms X’s complaint. This is not intended to be a detailed account of what took place.
13. Mrs Y suffers from dementia. She used to live in her own home, supported by her husband. Mrs Y’s husband had Lasting Power of Attorney (LPA) for Mrs Y since her dementia diagnosis. Ms X and her sister (who I shall call Ms A) also provided support.
14. In June 2021, Mrs Y’s husband had a fall and was hospitalised. Ms X could not look after Mrs Y because of her own care and support needs and Ms A was away on holiday. Ms X approached the Council for help.
15. The Council arranged 24-hour care for Mrs Y in her home, to start on 2 August.
16. Ms A contacted the Council on 4 August. She thought Mrs Y should be in a care home permanently, not just on a temporary basis.
17. Mrs Y’s husband died several days later.
18. Ms X telephoned the Council on 11 August. She thought a live in carer was the best option for Mrs Y, but acknowledged she may need to sell her home for residential care. She asked to be present at any meeting to discuss Mrs Y’s needs.
19. Mrs Y’s new social worker (social worker two) spoke to Ms X’s two sisters on 13 August, but did not speak to Ms X. Ms X’s sister’s felt Mrs Y was miserable at home and it was in her best interests to go into residential care.
20. Social worker two visited Mrs Y’s home on 16 August with Ms X’s sisters, but not Ms X. Social worker two recorded he had been unable to speak with Ms X. Social worker two noted Mrs Y was agitated and confused at home and could wander at night. He believed Mrs Y would be safer and more settled in residential care and noted Mrs Y’s previous social worker agreed with this.
21. The Council therefore agreed to arrange residential care for Mrs Y on wellbeing and safety grounds.
22. Ms X spoke to social worker two on 19 August. She felt the Council and her sisters were not keeping her involved in decisions about Mrs Y. Social worker two said he tried to telephone Ms X but could not get through. He said the decision on residential care was in Mrs Y’s bests interests. Ms X agreed Mrs Y would benefit from residential care.
23. Mrs Y moved into residential care later in August. This was initially for respite care.
24. Ms X complained to the Council in September 2021. She said social worker two did not contact her or involve her in the early discussions about Mrs Y’s care.
25. Also in September 2021, social worker two arranged a best interests meeting for Mrs Y. Ms X, Ms A, and an advocate attended. The Council decided it was in Mrs Ys bests interests to remain in residential care. All parties agreed.
26. During the meeting, Ms X raised concerns that she was not kept up to date or given enough information about Mrs Y’s welfare. She was told her sister is the essential care giver and it is not practical for Finborough Court to update all family members.
27. The Council sent its complaint response on 23 September. It acknowledged it failed to consult Ms X before her contact on 19 August 2021. It said it relied on her landline number and did not take steps to contact her by letter. It said the officer is now subject to supervision and this will be monitored. The Council also apologised for the inconvenience and distress caused.
28. Ms X contacted social worker two in October. She said Mrs Y was depressed and often tearful in Finborough Court. She felt Mrs Y would benefit from trips out. She also said Mrs Y’s hearing aid batteries were constantly low despite her raising the issue.
29. Social worker two visited Mrs Y the next day. He recorded Mrs Y appeared in a good mood and was content. She was confused but happy and smiling. Her hearing box was fully charged, and staff said she is becoming more relaxed. Mrs Y was eating and drinking well and was less frequently agitated. Staff felt Mrs Y would benefit from more routine and structure before going on trips out of the home, as it may confuse her. Staff also felt Ms X may find it difficult to manage Mrs Y safely, due to her ill health.
30. Following his visit, social worker two spoke to Mrs Y and explained his discussions with the care home about trips out. Ms X agreed to wait until after her chemotherapy treatment.
31. Ms X spoke to social worker two in December 2021. She felt Mrs Y was more settled but said she was still not given the same visiting priority as Ms A. Ms X wanted to see Mrs Y in her room and take her out of the care home.
32. Social worker two spoke to Finborough Court about Ms X planning Christmas and birthday trips for Mrs Y. Care home staff were concerned Ms X was not well enough or mobile enough to take Mrs Y out of the home. However, staff agreed to speak to Ms X about this.
33. Ms X complained to the Council again in January 2022 because she remained unhappy with the way the Council involved her in Mrs Y’s care. She said:
• The Council’s earlier apology over failing to involve her was not enough. She also said social worker two had not spoken to her since, does not get back to her, and does not listen or understand her need to be involved in Mrs Y’s care.
• Mrs Y never wanted to go into a home. The Council and Ms X’s sisters worked against Mrs Y’s pre-advised wishes.
• She was unhappy Ms A got to see Mrs Y in her own room, whereas she has to see Mrs Y in a visitor’s room. She also said this was only once a week for 30 minutes. Ms X said she played a major role in Mrs Y’s care previously whereas Ms A did not.
• She wanted the same access to Mrs Y as Ms A, such as seeing her in her own room, providing care when she likes, and being able to take her out of the care home.
34. Social worker two completed a review of Mrs Y’s care home placement in February. The review was conducted at Finborough Court with Ms X and Ms A present. Ms X agreed Mrs Y showed less signs of upset or grief and was used to her room and care home staff. However, Ms X expressed feeling not as welcome at the home as Ms A and felt removed from updates and decision making. The Council decided it was in Mrs Y’s best interests to stay at Finborough Court long term.
35. The Council sent its final complaint response on 9 March 2022. It said:
• Mrs Y’s mental capacity assessment from July 2021 states Ms X and Ms A felt Mrs Y should go into residential care while her husband was in hospital. Ms X also left a voicemail message with the Council the next day giving permission for Mrs Y to go into residential care.
• A mental capacity advocate noted on 3 September 2021 that Mrs Y expressed a wish to stay in the care home. While Mrs Y may previously have said she did not want to go into a care home, the Council did not share this view and it took appropriate actions for a positive outcome.
• Finborough Court followed Government guidance on visiting, which included booking slots, designated rooms, and time constraints. It also involved appointing one essential care giver, unless there are exceptional circumstances.
• It apologised social worker two did not get back to Ms X. It said this was raised with him through supervision and since then he has been in contact with Ms X, including recently about a review meeting.

My investigation

36. In response to my enquiries, the Council acknowledged it could have explored other ways to contact Ms X to involve her in early discussions about Mrs Y’s care.
37. The Council told me all care homes had visitor restrictions in place during the COVID-19 pandemic and homes introduced their own guidance when the Government lifted restrictions.
38. The Council said after a review of Mrs Y’s care and support plan in February 2022 Finborough Court agreed to provide Ms X regular updates.
39. The Council told me Finborough Court chose Ms A as Mrs Y’s essential care giver because it was understood she provided most of Mrs Y’s care and support in the community. Finborough Court said Ms A had always been the constant visitor to Mrs Y and she visits frequently each week. It also said Ms X made it clear she could not always visit due to ill health.

Analysis

40. The Council apologised for not doing enough to contact Ms X and involve her in the meeting about Mrs Y moving into residential care. That was fault. However, on the evidence seen Ms X did later agree with the decision and I have not seen evidence to suggest the decision was not in Mrs Y’s best interests.
41. I can appreciate Ms X’s distress at not being involved in the decision to place Mrs Y in residential care. Ms X did not initially consider this was in Mrs Y’s best interests. She also said Mrs Y had always said she did not want to go into residential care. While the Council will take Mrs Y’s previous wishes into account, it would not be the only or the deciding factor. The most important consideration would be how best to meet Mrs Y’s needs. Social worker two and Ms X’s sisters were in agreement residential care was the best choice. I found Ms X later agreed. I therefore do not find the Council at fault.
42. I also found Ms X has been involved in decision making and reviews since the initial fault. I have not seen evidence the Council excluded Ms X or that it did not take her views into account.
43. Mrs Y lacks capacity and did not have anyone appointed as her LPA after her husband died. That meant Finborough Court should have discussed appointing an essential care giver with Mrs Y’s family. Unfortunately, Finborough Court does not have any record of its decision. However, it told me it considered Mrs Y’s best interests in looking at the care she already received. It also took account of Ms X’s own illness when it appointed Ms A.
44. I appreciate Ms X disagrees with Finborough Court’s decision to make Ms A the essential care giver, but this was a considered decision which Finborough Court was entitled to make. While I also acknowledge Ms X wanted to be involved in the decision-making process, I have not seen evidence this caused significant injustice. That is because, on balance, I found this would not have altered the decision.
45. When the Government lifted early COVID-19 restrictions, Finborough Court decided visits by people who were not essential care givers should take place in a separate room, away from resident’s own bedrooms, and for a set period of time. This was so Finborough Court could control visits and try to ensure they were safe.
46. Government guidance at the time said dementia sufferers may be more comfortable in their own room, and visits should not be time limited if safe practice can be maintained. However, I am mindful this is only guidance and is not a ‘one size fits all’ list of requirements. Care providers had to adapt the guidance to fit their own circumstances. Ultimately, ensuring safe practice was of crucial importance and the guidance does not say care providers could not hold visits in separate rooms and for limited durations. It is not the role of the Ombudsman to dictate to care providers what best practice at their care home would have looked like. I have not seen evidence Finborough Court failed to follow Government guidance and I do not consider the arrangements it had in place were clearly contrary to that guidance. I therefore do not find the Council or Finborough Court at fault
47. Government guidance also said residents should be supported to have visits out of the care home. I appreciate Ms X’s frustration about this, because I can see she made several requests to take Mrs Y out of the care home. However, I found social worker two did speak to Finborough Court about this. Staff initially thought Mrs Y needed more routine before going on trips out, and they were concerned Ms X may struggle to look after Mrs Y due to her own ill health. That is a professional judgement call and is not something the Ombudsman can decide. I have not seen evidence Ms X’s request was ignored or not properly considered.

Injustice

48. When the Council failed to initially involve Ms X in decision-making it caused her distress and frustration. Miss X also felt she missed the opportunity to influence events by expressing her views about Mrs Y care and support.
49. Ms X does consider the Council’s apology was enough. The Ombudsman cannot go back and ask the Council to make its decision about residential care again. I also found no evidence the decision was not in Mrs Y’s best interests.
50. I found the Council’s communication with Ms X improved after her complaint and she has been involved in subsequent decisions. I also understand visits have now improved and Ms X can spend more time with Mrs Y. She can also take Mrs Y on trips out and Finborough Court agreed to provide Ms X updates.
51. I am therefore satisfied the Council’s apology, and the improved situation since Ms X’s complaint, is sufficient remedy for the injustice caused.

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Final decision

52. I have completed my investigation. There was fault causing injustice when the Council failed to adequately communicate with Ms X or involve her in its initial decision-making. I found the Council’s apology and improvements since Ms X’s complaint remedies her injustice.

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Investigator's decision on behalf of the Ombudsman