Summary: Mrs D complains about the Care Provider’s actions during the COVID-19 lockdown while her father was resident at Windsor House Care Home. We have found that some of the Care Provider’s actions caused injustice to Mrs D. It has agreed to apologise.

The complaint

1. Mrs D complains about the Care Provider’s actions during the COVID-19 lockdown while her father, Mr B, was resident at Windsor House Care Home. She says it did not let her see her father, did not respond to her, and did not tell her Mr B was at the end of his life. She says this has caused her significant distress as he died alone.

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The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused an injustice we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
3. 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)
4. 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 care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
5. If we are satisfied with a care provider’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. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

7. I spoke to Mrs D about her complaint and considered the information she sent, the Care Provider’s response to my enquiries and Admission and care of residents in a care home during the COVID-19 pandemic, Public Health England Guidance, 2 April 2020.
8. The Care Provider initially told us it had transferred responsibility for the Home to a different provider. We started investigating in January 2021 once this was clarified.
9. Mrs D and the Care Provider 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

Fundamental Standards of Care

10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall. The standards include:
• Person-centred care (Regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences. Providers must involve a person acting on the service user’s behalf in the planning of their care and treatment.
• Safe care and treatment (Regulation 12): The provider must have arrangements to take appropriate action if there is a clinical or medical emergency.

Admission and care of residents in a care home during the COVID-19 pandemic

11. On 23 March 2020 England entered its first lockdown because of the COVID-19 pandemic. This meant people had to stay at home unless there was a specific reason not to do so. Visiting people in care homes was not one of those reasons.
12. The Government issued Guidance for care homes on 2 April 2020. This said if an individual had no COVID-19 symptoms then care should be provided as normal. Residents with symptoms should be isolated in a single room with separate bathroom where possible. Care homes should monitor residents and staff for COVID-19 symptoms daily. The symptoms are a fever, cough or shortness of breath. At the time of the events in this complaint, people were not tested for COVID-19 unless they were admitted to hospital. People moving into care homes from hospital did not require a negative COVID-19 test before admission.
13. The Guidance also said family and friends should be advised not to visit care homes, except next of kin in exceptional situations such as end of life. If there was a visit, social distancing guidance should be followed.

What happened

14. Mr B was in his 80s and had dementia; he did not have capacity to make complex decisions about his care. He went into Windsor House Care Home (“the Home”), run by Four Seasons Homes (“the Care Provider”) on 20 March 2020 after a period in hospital.
15. Mr B had four children, two of whom had power of attorney. Mrs D did not have power of attorney. The Home’s records say it was agreed that the Home would contact one of these siblings (Mrs D’s sister) who would pass information to the others.
16. The daily records show that Mr B was receiving personal care, being given his medications and was eating and drinking. He would stay up late and wandered at night.
17. In response to the COVID-19 pandemic, the Home had stopped allowing families to visit indoors. Mrs D says she visited every day and would talk to Mr B through his open window. Mrs D says another visitor told her virtual visits may be possible but the Home did not offer her this option. Mrs D says that on 12 April one of her siblings with power of attorney told her the Home had said she should stop visiting. The record of the Home’s call with Mrs D’s siblings that day confirms this.
18. At 1am on 14 April, Mr B woke with a fever and chesty cough. The Home called 111 and the Doctor sent paramedics. The paramedics took Mr B to A&E and his chest was X-rayed. The hospital decided to discharge Mr B later that morning so that he could be cared for in the Home. The Home was concerned that the Hospital had not tested Mr B for COVID-19 despite him showing symptoms.
19. Over the next few days the records show Mr B appeared well, although tired. He did not eat much on 18 April but was “bright and cheerful” the next day.

Events of 20 – 25 April 2020

20. On 20 April Mr B started projectile vomiting, although his temperature and oxygen levels were normal. The Home called 111 at 3pm which said to speak to Mr B’s GP. The Home asked the GP to call. Mr B did not vomit again until the following night and the Home encouraged him to eat and drink.
21. At 1am on 22 April Mr B started vomiting again; his temperature was normal but his oxygen levels were fluctuating. The Home spoke to the GP. It said Mr B was vomiting, lethargic, weak, had increased confusion and a poor appetite. The GP prescribed new anti-sickness medication but Mr B continued to be sick, though his oxygen levels increased to normal. Mr B did not eat but had some fluids. The Home spoke to Mrs D’s sister.
22. Mr B’s condition remained the same on 23 April. The daily records say Mr B had “smiled at staff and blown kisses”. Mr B had not eaten but had drunk and had a “comfortable night”.
23. Mr B was vomiting again on the morning of 24 April and was placed on hourly checks. The Home spoke to the GP who advised to continue to offer fluids and medicines, to make him comfortable and to dial 999 if his condition worsened; the note says the GP suspected COVID-19. The Home spoke to Mrs D’s sister again and placed Mr B on 15-minute checks. The nurse regularly took his temperature and blood pressure.
24. Mrs D says she called the Home that evening and was told Mr B was being sick but “was fine” and had been “pottering about”. She asked what would happen if he deteriorated and was told the Home would call her so she could be with Mr B if he was at the end of his life.
25. The records of the 15-minute checks show that during the evening of 24 April Mr B was either sleeping, settled or restful. At 1am on 25 April he was found to have stopped breathing and there was no sign of a pulse. The note says he had “vomited small amount”. The Home called Mrs D’s sister and 111. The Doctor confirmed Mr B’s death at 01:53 over the phone. The GP referred Mr B’s death to the coroner but there was no inquest.

Mrs D’s complaint

26. Mrs D complained to the Care Provider the next day. She was very distressed that Mr B had died alone and complained the Home had not told her Mr B was at the end of his life. She was also concerned that she had been stopped from visiting Mr B.
27. The Care Provider responded on 27 May 2020. It passed on its condolences. It denied advising that Mrs D could not visit but said it had raised concerns about a lack of social distancing during her visits. It said the Home had to stop visitors in line with the Guidance but tried to maintain contact with family wherever possible. It apologised that Mrs D felt she was not supported to maintain contact with Mr B. The Care Provider said when Mr B was ill it had contacted Mrs D’s sister, as agreed. The Home had been monitoring Mr B on 24 April and would have contacted Mrs D’s sister if they felt he had been at the end stages of his life.
28. Mrs D was dissatisfied and escalated her complaint. A senior manager reviewed the complaint and confirmed the Care Provider’s response in August 2020.
29. Mrs D complained to the Ombudsman. She said it was a breach of her human rights to have been stopped from visiting Mr B, and that Mr B had been neglected and left to die alone. This had caused her significant distress, resulting in her needing anti-depressants.

My findings

30. I have reviewed Mr B’s care records. He was receiving care, medication and until 18 April was eating and drinking. Medical advice was sought appropriately and he was regularly checked. I have seen no evidence he was neglected or that the quality of care fell below the fundamental standards. Although he was ill on 14 April, between then and 20 April he appeared tired but generally well with no signs of fever or cough. Mrs D complains the Home did not contact her or her siblings during this period, but as Mr B’s condition was stable I do not consider it was required to.
31. Mrs D considers the Care Provider’s decision to stop the family visiting was a breach of her and Mr B’s human rights, in particular Article 8 - respect for private and family life. The Human Rights Act 1998 applies to local authorities and other bodies carrying out public functions, but it does not apply to privately arranged and funded care. This means the Care Provider did not need to have regard to Article 8 when it made its decision. In any event, the Home was following Government Guidance I therefore do not find fault with its decision to stop visits.
32. However, although the Home had agreed to liaise with Mrs D’s siblings, I find the Care Provider should have been clearer with Mrs D about the visiting arrangements. I consider it was important to speak directly to Mrs D about such a sensitive and important matter when it decided to stop her visiting at all from 12 April 2020. I find that not to do so was fault.
33. I cannot say that if those discussions had taken place Mrs D would have been allowed to continue visiting Mr B, especially as lockdown meant people had to stay at home except for essential purposes, which did not include visiting care homes, and I have seen no evidence that virtual visits were an option. However I consider the lack of discussion has caused her significant distress about whether she could have been with Mr B at the end of his life.
34. The decline in Mr B’s condition from 20 April was clearly a traumatic and worrying time for Mrs D. However, I have seen no evidence to suggest Mr B was left alone or in distress. When Mr B started vomiting the Home spoke to the GP and Mrs D’s sister. Mrs D complains the Care Provider did not contact her or respond to her. It was entitled to agree to liaise with the siblings with power of attorney and did so on 22 April and 24 April.
35. The Home did not contact Mrs D or her sister during the evening of 24 April because it did not consider Mr B was at the end of his life. Having reviewed the records, I consider this was reasonable and I do not find fault.
36. There was fault in the Care Provider’s complaint response. It said the Home had not told Mrs D not to visit from 12 April, but that contradicts the record I have seen which clearly shows the Home asked the family not to visit. This has caused frustration and distress to Mrs D.

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Agreed action

37. Within a month of my final decision, the Care Provider has agreed to apologise to Mrs D for the distress caused by the faults identified in paragraphs 35 and 38.

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Final decision

38. There was fault by the Care Provider. The actions it has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman