Summary: Mrs X complains the Council’s care provider, Fairlawn (a care home run by Care South), failed to keep her updated about her mother’s condition during the first lockdown or provide proper contact with her when she was at the end of her life. There have been problems for which Care South has apologised, which is an appropriate remedy for the injustice caused. However, it was not at fault over restricting Mrs X to a single end-of-life visit. Mrs X has also raised concerns about the failure to provide copies of her mother’s care records after she died.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council’s care provider, Fairlawn, failed to keep her updated about her mother’s condition during the first lockdown or provide proper contact with her before she died, causing her distress.

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What I have investigated

2. I have investigated Mrs X’s concerns about communications with and about her mother.

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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. 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, sections 30(1B) and 34H(i), as amended)
5. 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/care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
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)

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How I considered this complaint

7. I have:
• considered the complaint and the documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the information the Council has provided; and
• invited comments on a draft of this statement from Mrs X, Fairlawn, Care South and the Council, and considered the comments before making my final decision.

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What I found

8. Care South produced a residential services visiting protocol, which came into effect on 1 July 2020. It provided for visits to take place in gazebos in the grounds of its care homes:
• maximum of two visitors allowed per visit sitting two metres apart;
• each visit to last no more than 15 minutes;
• a pre-arranged visit for anyone on end-of-life care in the person’s room, with the visitor wearing personal protective equipment.
9. On 22 July 2020 the Government issued Guidance: Update on policies for visiting arrangements in care homes. This set out the broad principles on which local policies should be based. Among many other things, it advised taking account of:
• local circumstances and the prevalence of COVID-19;
• balancing the benefits to residents against the risk of visitors introducing infection;
• exploring alternatives to in-person visits (e.g. telephone or video);
• limiting visitors to a single constant visitor per resident, wherever possible;
• reducing risks by restricting visits to communal gardens, window visits and/or drive‑through visits;
• “the likely practical effectiveness of social distancing measures between the visitor and the residents, having regard to the cognitive status of the resident and their communication needs”;
• “where the healthcare needs of the individual cannot be met by socially distant visits, whether there are sufficient infection-control measures in place to protect the residents, staff and visitors, to allow the visit to take place (…). This might include the provision of personal protective equipment [PPE], as provided to members of staff caring for that individual”;
• “the extent of the harm that will be experienced by the resident from a lack of visitation or whether the individual is at the end of their life”;
• “visitors should wear PPE appropriate to the need of their visit. If a visitor is making close personal contact with a resident they may need to wear PPE which goes beyond a face covering”;
• “consider whether visits could take place in a communal garden or outdoor area, which can be accessed without anyone going through a shared building. If visiting does take place in in a resident’s room, visitors should go there directly upon arrival and leave immediately after”;
• “consider the use of plastic or glass barriers between residents and visitors”;
• “consider the possible use of designated visiting rooms, which are only used by one resident and their visitor at a time and are subject to regular enhanced cleaning”;
• “visitors should be encouraged to keep personal interaction with the resident to a minimum, for example avoid skin-to-skin contact (handshake, hug) and follow the latest social-distancing advice for as much of the visit as possible”.

What happened

10. Mrs X’s mother, Mrs Y, was living in Fairlawn in March 2020 with funding provided by the Council. Mrs Y had dementia. Her husband died in March. When the country went into lockdown on 23 March her family could no longer visit her.
11. Mrs X e-mailed Fairlawn on 14 May to check a video call with her mother would go ahead at 11.30. She suggested fortnightly calls with Fairlawn to check on her mother’s progress following Mr Y’s death, and weekly e-mails on the situation, activities planned and a few photos. She said this would help to reassure families. She said they got no proactive feedback on her mother and only got a snapshot whenever they were able to speak to her.
12. On 18 May Fairlawn told Mrs X staff would be happy to update her if she called. It said Mrs Y appeared unaffected by her husband’s death. However, it said she had confided in a member of staff, with whom she shared a strong faith, about her sense of loss and was receiving support. It said it could not commit to sending weekly e-mails, as it was working hard to maintain activities and ensure residents kept contact with family via video calls.
13. Mrs X said she did not necessarily expect a weekly e-mail but said some kind of general contact with families would be helpful after nine weeks of lockdown. She said the level of factual information they received on phone calls was limited.
14. When the lockdown was lifted at the end of June, Mrs Y was not well enough to take part in visits in Fairlawn’s grounds.
15. On 17 July Fairlawn told Mrs X it did not have a copy of her mother’s power of attorney, signed in March 2019 and naming Mr Y, Mrs X and her sister as joint attorneys. Mrs X e-mailed a copy to Fairlawn, which then told her about a significant decline on her mother’s health.
16. Mrs X and her sister visited their mother on 2 August for an end-of-life visit. She says they should have been allowed more than one visit, given that the level of COVID-19 in Dorset was very low and she had her sister had tested negative for the virus.
17. A priest visited Mrs Y on 5 August.
18. Mrs Y died on 6 August.
19. Mrs X complained to Care South on 20 August about:
• a lack of information about Mrs Y’s health after Mr Y’s death, which left them shocked when they discovered she was malnourished on 17 July;
• being denied more than one end-of life visit and the room being full of carers when they left which prevented them from saying “goodbye”;
• the failure to consider solutions (e.g. moving Mrs Y to a downstairs room to allow contact via a window);
• the lack of a Social Worker for Mrs Y;
• preparing a hastily and poorly written end-of-life care plan the day before Mrs Y died, which did not involve the family;
• not recognising Mrs Y’s religious beliefs;
• not contacting them when Mrs Y was dying and not letting them see her after she died;
• not making a full inventory of Mrs Y’s belongings; and
• putting her belongings in bin bags after she died and having to make more than one trip to collect all of them.
20. When Care South replied to Mrs X’s complaint on 16 September, it said:
• Fairlawn had responded to her e-mail of 14 May (see paragraph 12 above);
• after Mr Y died, it needed to see the power of attorney for health and welfare before providing more detailed information about Mrs Y’s condition, but this did not arrive until after the video meeting on 17 July;
• Fairlawn had reviewed Mrs Y’s needs on 24 July;
• Mrs X had been able to have contact with her mother via telephone and video calls;
• its arrangements for visits were in line with Government guidance, by providing facilities in the grounds to avoid contact with staff and other residents;
• the Council was responsible for allocating a Social Worker;
• its policy on end-of-life visits had been for one family member to visit but Fairlawn had allowed Mrs X and her sister to visit on 2 August and they spent most of the day with Mrs Y;
• if Fairlawn had had a downstairs room available it would have moved Mrs Y;
• Fairlawn knew about Mrs Y’s religious beliefs. It noted she confided in one member of staff because they shared a strong faith. She had not wanted a priest to visit on 17 July but Fairlawn had arranged for one to visit on 5 August when Mrs X asked for this;
• it had discussed the end-of-life care plan with Mrs X and she had identified no specific instructions;
• there had been no opportunity to contact the family when Mrs Y was dying because it happened so quickly;
• under normal circumstances Mrs X could have seen her mother as much as she wanted before and after her death, and it was sorry for the distress caused by its COVID-19 visiting policy;
• it apologised because Fairlawn did not complete an inventory for Mrs Y on admission, but noted it later recorded information about her jewellery;
• it apologised for the distress caused by packing some of Mrs Y’s belongings into bin bags and overlooking some items. It put this down to the “short notice”, the number of possessions and the difficulty of buying more boxes when a lot of local shops were closed;
• it had bought new equipment to facilitate video calls, upgraded broadband and improved WIFI in its care homes. It was not normal practice for a member of staff to stay with a resident while on a video call, unless asked to do so. It apologised that Mrs X had sometimes been unable to attract the attention of a member of staff when her mother needed help during a call;
• during July and August it had been concerned that a second wave of COVID-19 was inevitable and had therefore taken a cautious approach – increasing cases showed it had been right to be so;
• it had changed its policy on end-of life visits to provide for up to three one hour visits a week, provided this could be done safely.
21. As Mrs X was not satisfied with Care South’s response, she wrote again on 12 October saying:
• it was ill-informed and insensitive to say Mrs Y appeared unaffected after her husband’s death;
• she and her sister had held joint power of attorney with their father, so there should have been no disruption in communication after he died;
• they had been devastated to learn of their mother’s declining health on 17 July;
• her mother should have been treated as an exceptional case, as video calls and gazebo visits did not provide meaningful contact when she was approaching the end of her life;
• no one told them it was not possible to move their mother downstairs;
• an end-of-life care plan should have been written when Mrs Y was deemed to be at the end of her life;
• her mother may not have had the mental capacity to reject the priest’s visit;
• staff at Fairlawn should not have left Mrs Y alone with a tablet she did not know how to operate.
22. Care South replied to Mrs X’s complaint on 14 October. It said:
• it should have stored the power of attorney with Mrs Y’s records before 17 July – this would have avoided much of the communication problems she had experienced since early May;
• its policy on visiting and end of life visiting had kept staff and residents safe;
• it was sorry it had not been able to meet Mrs X’s expectations for visiting;
• it was considering what improvements it could make to end of life care plans;
• fifteen percent of its workforce had been absent during the first two months of the lockdown and staff regularly had to self-isolate, putting strain on those working;
• it apologised for any unintended distress caused.

Is there evidence of fault by the Council which caused injustice?

23. With reference to paragraph 6 above, the Council is accountable for the actions of the care provider.
24. There is no dispute over the fact that there were communication problems between Fairlawn and Mrs Y’s family after her husband’s death. Fairlawn should have stored the power of attorney with Mrs Y’s records to prevent this from happening. Care South has apologised and taken action to ensure Fairlawn does not make the same mistake again. Care South has accepted responsibility for other problems for which it has apologised. This remedies the injustice it has caused.
25. There is also no dispute over the fact that Mrs X has been caused distress by the restrictions on communicating with her mother because of COVID-19. However, this was not down to fault by Care South.
26. Care South already had a policy on visits in place when the Government issued its Guidance. Many aspects of its policy were in line with the Government Guidance, which encouraged remote contact and contact out of doors. However, Care South allowed two visitors, rather than just limiting people to a single visitor. That was something it was entitled to do, provided it was satisfied it could manage the risks.
27. Mrs X believes Fairlawn should have shown greater flexibility when Mrs Y was at the end of her life because the rates of COVID-19 in Dorset were low compared with other parts of the country. Care South has explained that it took a cautious approach. That does not amount to fault. Besides Fairlawn allowed both Mrs X and her sister to attend the end-of-life visit.
28. There is nothing in the Care Act 2014 or the Care and Support Statutory Guidance which requires councils to allocate a Social Worker to everyone receiving care and support. So the Council was not at fault for failing to do so.

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Final decision

29. I have completed my investigation on the basis that Care South’s apologies are sufficient remedies for the injustice it has caused.

Parts of the complaint I did not investigate

30. I have not investigated Mrs X concerns about the failure to provide copies of her mother’s care records after she died, as the Information Commissioner’s Office is better placed to deal with such matters.

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Investigator's decision on behalf of the Ombudsman