Summary: Mrs X complained about the care provided to her mother, Mrs M, on behalf of the Council, which she said caused her mother to catch COVID-19, leading to her death. The Council was not at fault.

The complaint

1. Mrs X complained about the care provided to her late mother, Mrs M, by Gorton Parks Nursing Home, on behalf of the Council. In particular, she complained that:
1. her mother fell from her bed on three occasions between August 2019 and February 2020, on one occasion sustaining an injury requiring medical assessment;
2. her mother caught COVID-19 as a result of poor care, which led to her death in April 2020; and
3. the care home should not have charged her mother for the period when she was in hospital in March-April 2020.
2. Mrs X also complained the Council did not carry out an adequate investigation following a safeguarding report in January 2020.
3. Mrs X says these faults caused her distress and she considers the care home fees for the last four weeks of her mother’s life should be waived.

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What I have investigated

4. I have not investigated the complaint about falls in August 2019 for reasons I will set out at the end of the decision statement. I have investigated the other complaints.

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The Ombudsman’s role and powers

5. 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)
6. 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)
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 and care home followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
8. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. If we are satisfied with a council’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)

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How I considered this complaint

10. I considered:
• the information provided by Mrs X, the care home and the Council;
• relevant law and guidance, as set out below;
• our guidance on remedies.
11. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Mental capacity and best interest decisions

12. The Mental Capacity Act 2005 sets out the framework for deciding whether a person has capacity to make decisions for themselves and how to make a decision on behalf of someone who cannot do it for themselves. A key principle is that a decision made on the person’s behalf must be in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests.

Adult safeguarding

13. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)
14. Where the report of concerns is about someone who lives in a residential care home, the care provider should conduct an initial enquiry and report back to the council’s safeguarding lead.

COVID-19 guidance

15. The Government issued guidance for care homes in March 2020, which was updated on 6 April 2020. This said the following.
• Care workers who are concerned they have COVID-19 should follow NHS advice. If they are advised to self-isolate at home they should follow the stay at home guidance.
• If an individual being cared for has symptoms of COVID-19, the risk of transmission should be minimised through safe working procedures.
• Staff should use personal protective equipment (PPE) for activities that bring them into close personal contact, such as washing and bathing, personal hygiene and contact with bodily fluids. Aprons, gloves and fluid repellent surgical masks should be used in these situations.
• If the individuals being cared for did not have symptoms of COVID-19 then no PPE was required but good hygiene practices should be followed.

This guidance was withdrawn in May 2020.

16. The Government’s Adult Social Care Action plan published in early April 2020 set out expectations for care providers, including the need to refer to their local Health Protection Team in the event of an outbreak and follow advice, including isolating cases from other residents, and infection control. Care providers were advised to isolate new residents or residents discharged from hospital for 14 days. At this stage hospitals were not required to test patients for COVID-19 prior to discharging them.

What happened

Background

17. Mrs M moved to the care home in August 2019, after a period in hospital following a fall. Whilst she was in hospital she suffered a stroke. Records show both her physical and mental condition deteriorated whilst she was in hospital.
18. Since Mrs M was not able to make decisions about her care, the Council consulted her two daughters (including Mrs X) and made a best interests decision that she should be cared for in a nursing home. Her daughters chose Gorton Parks Nursing Home and Mrs M moved there in early August 2019 when a room became available.

Falls in nursing home

19. The records show Mrs M was at risk of falls before the hospital admission. Her condition deteriorated during her hospital stay and she was not able to mobilise without assistance. When she moved to the care home she was assessed as being at risk of falling from her bed. This was managed by lowering the bed, by providing a crash mat and a bed sensor, and by regular checks by staff.
20. Records show Mrs M fell from her bed three times – on 14 and 28 August 2019, and on 14 February 2020. On each occasion the care home completed a risk assessment, which I have seen. I have also seen records relating to the fall in February 2020. These show Mrs M fell from her bed in the early hours, staff checked for injuries and found none, and Mrs M did not report any pain. Records for the following day show no indication of any adverse effects following the fall. Mrs X was informed about the fall.

Safeguarding report – January 2020

21. In early January Mrs M reported an intruder had sexually assaulted her. The care home called the police and made a safeguarding referral to the Council.
22. Council records show the police led the investigation but decided not to take further action due to a lack of evidence. The records show Mrs M changed her account of what happened and Mrs X had suggested she may have been recalling an incident that had occurred when she was younger. Mrs M also referred to being dragged downstairs but there were no stairs at the care home. The care home had no CCTV and there was no other evidence to show what had happened. The police checked the care home’s security but did not raise any concerns about it.
23. The Council considered the care home’s handling of the matter. It found:
• there was a four hour delay after a resident reported the intruder to staff before the care home called the police. The care home was not able to explain the reason for that delay but it appeared the incident was managed by night staff and only reported to the police when day staff came on duty; and
• the care home had failed to report the incident to Mrs X, as next of kin. Mrs X found out when the police contacted her as part of their enquiries around four hours after the incident was reported.
24. The Council recommended the care home should address those issues through staff training. The care home later reported to the Council that it had done this through individual supervisions and staff meetings.
25. Council records show its social worker contacted Mrs X on 16 January 2020 to explain the process, at which point they told her the investigation was being led by the police and they did not expect to be able to update her for around six weeks. The social worker called Mrs X again on 26 February 2020 to update her. During the second call, Mrs X raised concerns about Mrs M’s care and the social worker said she would do an unannounced visit to the care home to follow up on those concerns, which she did in late February. I have seen the record of that visit.
26. Mrs X spoke to the social worker again in early April, at which point she was concerned about her mother’s weight loss. Although the social worker said she would visit Mrs M she was not able to do so because Mrs M went into hospital two days later. Care records show there were no concerns about Mrs M’s weight when the social worker visited in late February but there were concerns she had lost weight when she returned to the care home in late March, after a hospital admission.
27. The social worker did not write to confirm the outcome of the safeguarding referral until early August 2020, following Mrs X’s complaint. In response to her complaint, the Council accepted it should have written to Mrs X to confirm the outcome sooner and apologised for not doing so.
28. Mrs X told me there was a later intruder incident at the care home, which led her to feel Mrs M was telling the truth and that both the care home and the Council had minimised the incident.

March to April 2020

29. In March 2020 Mrs M became unwell and was admitted to hospital with a chest infection on 17 March 2020. She was discharged on 23 March and returned to the care home. The hospital discharge sheet indicates she tested negative for COVID-19 whilst in hospital.
30. Care records show staff were concerned she had lost 12 kg in weight when she returned to the care home. In accordance with its policy at the time, it cared for her in her room, and checked on her every hour. The care home records for March show it noted Mrs M had a slightly raised temperature on two occasions.
31. On 1 April, care records show Mrs M refused food and appeared unwell. The care home called the GP for advice and was advised to keep observing Mrs M. The care home called the GP again later that day. The GP carried out a video consultation and prescribed antibiotics, which Mrs M started taking the same day.
32. Mrs M continued to be unwell. The care home monitored her condition hourly in accordance with the care plan and gave her the antibiotics prescribed. On 4 April, staff felt Mrs M was not very responsive and called an ambulance. Mrs M was taken to hospital. She tested positive for COVID-19 on 7 April 2020. Sadly, Mrs M died in hospital on 10 April 2020.
33. In its complaint response, the Council said:
• at the time Mrs M returned to the care home in March 2020, the care home had an isolation policy in place, which meant Mrs M was being cared for in her room. This meant she only came into contact with care home staff;
• there was a COVID-19 outbreak at the home around this time and it was likely that Mrs M had caught the virus from a member of staff; and
• at the time, testing was not available and some people who contracted the virus did not show any symptoms.
34. In response to my enquiries, the Council said that at the time of these events guidance, testing and understanding of COVID-19 were just emerging. When the first cases were identified in mid March, Public Health England advised that staff should wear PPE comprising aprons, gloves and masks when caring for residents with symptoms. At that stage, the advice was to follow its “Influenza in care homes guidance”. In early April four further symptomatic cases were identified at the care home. The Council maintained regular contact with the care home throughout, including providing updated guidance from Public Health England and assisting it to source PPE supplies. The Council has provided copies of the various guidance documents issued during the relevant period.

Invoice

35. Mrs X said she received an invoice from the care home in early June 2020 for £781 for the last four weeks of her mother’s life. She did not feel this was appropriate given her mother had spent time in hospital during this period.
36. Mrs X contacted the Council about the invoice and an officer asked her to explain why she felt she should not have to pay, which Mrs X found insensitive. The officer explained the care home fees must be paid until the person dies to ensure the room is available to them in case they are able to return. Mrs X said she would not pay for the last week when Mrs M was in hospital.
37. In its complaint response, the Council confirmed the advice given by its officer was correct but apologised for the way the officer’s comments came across. It said it would waive the last week’s fees as a goodwill gesture.

My findings

Fall in February 2020

38. The records show the care home had assessed Mrs M of being at high risk of falls and had taken appropriate action to reduce the risk of falls and injury from falls. This included lowering the bed to the lowest setting, providing a crash mat and bed sensor, and by regular checks by staff. I consider the risks were appropriately identified and managed. Staff took appropriate action after Mrs M fell in February 2020 and she was not injured so no medical assistance was needed.

Safeguarding

39. The care home made a safeguarding referral to the Council in early January 2020 after reports from three residents, including Mrs M, of an intruder. Given the serious nature of the allegations, the police led the investigation but were not able to find evidence to support further action. The police considered the care home’s security but did not raise any concerns about it.
40. The Council also made enquiries, including visiting the care home and checking its records. It identified two concerns about the way the care home managed the incident and recommended action to address these, which was appropriate.
41. The records show the Council took the allegation seriously and made appropriate enquiries. I have found no fault in the way it did this or in the way it communicated with Mrs X between January and April 2020.
42. The Council failed to tell Mrs X the final outcome of the safeguarding until after she complained, for which it has already apologised. Although it should have confirmed the outcome earlier, I am satisfied that it had shared information about the investigation appropriately with Mrs X to April 2020 after which there were no developments other than the police formally confirming they had closed their file. Therefore, I do not consider the failure to send a final letter was sufficient to warrant a formal finding of fault.

COVID-19

43. Mrs M tested negative for COVID-19 on discharge from hospital on 23 March 2020. Following her return to the care home, she was required to self isolate in her room for 14 days, in line with the guidance at the time. This means she only came into contact with staff during that period and not with other residents.
44. Mrs M went back into hospital before the end of the 14 day period. A few days later she tested positive for COVID-19. It is not possible to say for certain when and where she contracted COVID-19, although the Council said in its complaints response that it was likely she caught it from care staff and this is what Mrs X believes happened.
45. The Council provided advice and support to the care home in mid March, when the first COVID-19 cases were identified there, and further advice was given as the guidance changed, which it did several times between mid March and early April 2020. In the period Mrs M was self isolating in the care home, the guidance said staff should use PPE for certain activities requiring close contact but PPE was only needed where the residents they were caring for had symptoms of COVID-19. Where staff had symptoms they were required to self isolate at home.
46. From early April, when four further cases were identified, the care home was advised to use PPE, isolate those with COVID-19 symptoms (testing was not available for those without symptoms at that point) and to take steps to control the spread of infection. Unfortunately, this was probably too late to prevent Mrs M from being infected but I am satisfied the Council appropriately supported the care home and the care home took appropriate steps to manage the COVID-19 risks as best it could with the knowledge and guidance available at the time.

Invoice

47. Mrs M’s care was arranged and funded by the Council. Mrs M was required to pay a contribution to the costs of her care.
48. The Council continued to pay the care home for Mrs M’s care during the period she was in hospital, including the few days she was receiving end of life care. This was to secure her place at the care home in case she was able to return and was in line with its normal policy. Although Mrs X complained it was clear that Mrs M would not be returning to the care home, there are cases where people make an unexpected recovery and it was not fault for the Council to secure her place at the care home. Further, I note that following Mrs X’s complaint, the Council waived £220.08, which represented her contribution to her care costs for her last week in hospital.
49. Mrs X has not paid the final invoice and the Council has offered to waive the £560.98 which remains outstanding as a goodwill gesture.

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Final decision

50. I have completed my investigation. I have not found fault.

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Parts of the complaint that I did not investigate

51. I did not investigate the complaint about Mrs M having fallen out of bed twice in August 2019. This was because the complaint about the falls in August 2019 was made too late. The records I have seen indicate the care home assessed Mrs M as being a high risk of falls and took appropriate action to reduce the risk of falls and injury. There is no indication Mrs M suffered a serious injury as a result of those falls and, in any case, I cannot remedy any such injustice to Mrs M as she has since died.

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Investigator's decision on behalf of the Ombudsman