Summary: Miss X complained the Care Provider handled her mother, Mrs Z, roughly during a visit. Miss X also complained the Care Provider banned her and her family from visiting and then gave Mrs Z notice to leave the Care Home without proper reasons. We cannot come to a conclusion on whether Mrs Z was handled roughly. The Care Provider was not at fault for how it decided to ban Miss X. It was at fault for banning the rest of the family and for giving Mrs Z notice. It has agreed to apologise to Miss X and make sure it has a process in place for dealing with difficult relationships.

The complaint

1. Miss X complains that Royal Bay Care Homes Ltd:
1. was rude to her and her mother, Mrs Z, and was rough with Mrs Z when Miss X was present;
2. banned her and the family from visiting or phoning her mother, after an incident in August 2020;
3. failed to deal with her complaints in a fair and impartial manner; and
4. gave the family notice that it must move Mrs Z to a new care home without proper reasons, when the family believe she was not fit to be moved.
2. Miss X says that as a result her physical and mental wellbeing have been badly affected.

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The Ombudsman’s role and powers

3. 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. (Local Government Act 1974, sections 34B and 34C)
4. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (section 26A or 34C, Local Government Act 1974)
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. 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”.
7. 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

8. I spoke to Miss X and considered her view of her complaint.
9. I made enquiries of the Care Provider and considered the information it provided. This included Mrs Z’s care plan, health visits, records of visits from Mrs Z’s family, records of incidents involving Miss X and Care Home staff and statements from two GPs who visited Mrs Z.
10. I wrote to Miss X and the Care Provider with my draft decision and considered their comments before I made my final decision.

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What I found

Relevant guidance

11. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve.
12. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
13. The CQC has issued guidance on the regulations. This says that any complaint must be investigated and necessary and appropriate action must be taken in response to any failure identified (regulation 16).

What happened

14. Miss X’s mother, Mrs Z, who has now died, used to be a resident at Castle Farm Care Home, which is owned by Royal Bay Care Homes Ltd.
15. Mrs Z’s contract stated that either party could give 28 days’ notice. In certain circumstances, the Care Home could give 7 days’ notice. These included where the Care home could no longer meet the needs of the resident, non-payment of fees and:

“In our opinion the behaviour of the resident or any other circumstance relating to the resident may be detrimental to the welfare or peaceful enjoyment of other residents or to the conduct of the home”

16. Mrs Z had a hearing impairment and wore a hearing aid.
17. On 23 March 2020, the country went into lockdown because of the COVID-19 pandemic.
18. Under the Care Home’s visiting policy, Miss X was able to visit her mother for ‘window visits’ on a weekly basis. These are when the visitor remains outside but can see and speak to their relative through the window.
19. Miss X said the window visits had worked well. Her mother would press her bell when she arrived and a carer would come and open the window a few centimetres so Mrs Z could hear Miss X. Miss X said the carers had always been happy to do this.
20. On 21 August, Miss X visited her mother. She said her mother pressed her bell and Carer A arrived and opened the window without Mrs X asking her to and then left.
21. Miss X said it soon became apparent, Mrs Z could not hear her, so she pushed her bell again. Another carer, Carer B arrived and Mrs Z asked her to insert her hearing aid.
22. Miss X said she continued to struggle to get Mrs Z to hear her and concluded there must be a problem with the hearing aid. Mrs Z pushed her button again and a third carer, Carer C, arrived. Miss X said Carer C was clearly angry with being called, was rough with her mother when she took out the hearing aid and then said there was nothing wrong with it and roughly inserted it. Miss X said Carer C told her she did not have time to deal with Mrs Z and the residents came first.
23. Miss X said she was so upset she cut her visit short and immediately drove to her son’s house. He phoned the Care Home and Miss X says the Manager was rude to him.
24. On 25 August, the Care Home Manager wrote to Miss X and said she had reflected on what had happened on 21 August. She said all other visitors booked before coming for a visit and it would be better if Miss X did the same in future so the carers could make sure Mrs Z’s hearing aid was in place. The manager said Mrs Z often removed her hearing aid. The manager also asked Miss X to wear a face mask and maintain a 2 metre distance in future as she had been told Miss X had put her head through Mrs Z’s window.
25. The manager said she had spoken to Carer C who said she felt under pressure because she was in the process of serving teas to the other residents. The manager said she had told Carer C she should have passed that job onto someone else, so she had time to check Mrs Z’s hearing aid batteries. Carer C apologised for not doing so.
26. In relation to the phone call with Miss X’s son, the Manager said she could not “recall ever having been spoken to in such a confrontational manner… I hope in future that you might contact me with a less upsetting phone call”.
27. In September, Miss X wrote to the Care Home. She said she had not been to see Mrs Z since the visit on 21 August “due to feeling anxious of encountering yourself in a verbally confrontational manner”. Miss X outlined the events as she felt they had occurred and which are outlined in paragraphs 17 to 20 of this decision statement. Miss X also complained about the visiting arrangements and said that there could “easily have been an alternative measure in place… [the arrangement] completely disadvantages those that are hearing impaired like my mother… the recent change allowing visitors into the covered entrance I find rather unsavoury seeing as you have [a staff member] directly in earshot along with your office… there would be absolutely no way to have a private conversation… your residents’ mental and physical wellbeing should be of the utmost importance at this time”.
28. Miss X said she had made a formal complaint to the Care Provider to enable a full investigation to be carried out and a formal apology made by the Care Home Manager and Carer C.
29. Later in September, the Care Provider responded. He said the rules imposed by the Care Home were reasonable and necessary and all other relatives and visitors had respected them. He spoke of the need to ensure there were no COVID-19 infections and said the staff “should not be receiving letters such as yours”. The Care Provider asked the family not to visit for a few weeks pending the new visiting arrangements. He wrote that in the meantime, the Care Home would set up pre-arranged telephone calls with Mrs Z. Once the new visiting arrangements were in place, indoor visiting could then begin in the conservatory.
30. In October, the indoor visiting area opened and Miss X began visiting Mrs Z again.
31. In January 2021, the Care Home Manager wrote to Miss X giving Mrs Z two weeks’ notice to leave. The letter stated “over the past few months an irreconcilable rift in your relationship with the Home has arisen… The way you have chosen to interact with the Home has caused both the staff and management unnecessary stress and upset… The Company has now consulted with [the GP] who has confirmed that there is no medical reason why [Mrs Z] cannot be moved to another care facility”.
32. Miss X’s daughter, Miss G, telephoned the Care Provider. Following this, on 14 January, the Care Provider emailed the Care Home Manager and said “[Miss G] still has concerns that [Mrs Z] moving might cause her issues, despite the GP assessment… when I asked her she said she had faith in the care at Castle Farm… I wonder if the notice given might have been the sharp realisation they needed… and maybe we can come to some sort of compromise with the family… I suppose the one that sticks out would be removing [Miss X] from the situation – reduced visits/controlled visits/video visits/only with another family member”.
33. The following day, the Care Provider sent a further email to the Manager which stated “We [could] invite them to nominate another individual to take over all dealings with yourself… we note times/dates of inappropriate behaviour, abuse and verbal attacks”.
34. Shortly afterwards, Mrs Z died.
35. During my investigation, the Care Home sent me several documents, including witness statements from Care Home staff who had heard what happened on 21 August. Two statements from staff referenced previous events relating to breaches, or potential breaches, of the Care Home’s COVID-19 procedures. With the first breach, Miss X handed another resident flowers after he requested she pick them from the garden. The Care Home Manager had written to Miss X about this and asked her to abide by the Home’s COVID-19 rules. With the second breach, staff stated they felt under pressure when Miss X wanted them to give Mrs Z. All the statements recorded a difficult relationship with Miss X.
36. Miss X informed me the window in Mrs Z’s room could only open a short distance and so she could not have put her head through it. The Care Provider stated her closeness to the open window meant she was less that 2 metres away from Mrs Z which could have led to infection being passed between them as she was not wearing a mask.

My findings

37. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

Care Home was rough with Mrs Z during a visit on 21 August 2020

38. Miss X said Carer C was rude and rough with Mrs Z when checking her hearing aid. The Care Home stated the carer was under pressure to serve the other residents their tea but that she denied being either rude or rough with Mrs Z.
39. Because I was not there, it is not possible to say, even on the balance of probabilities, what happened. I will not investigate this further.

Care Home banned the family from visiting and calling Mrs Z

40. I have examined the Care Home records and the information Miss X provided me. The Care Home was concerned about Miss X’s actions on 21 August when she visited Mrs Z, concluding she had breached the COVID-19 infection control measures it had put in place. As a result, it banned Miss X and the family from visiting until the new visiting area was ready.
41. Our role is to look at the way decisions are made. If they are made without fault, we cannot question the actual decision itself. In this case, the Care Home had recorded a previous incident of when it considered Miss X had breached its COVID-19 controls. Following a second breach, it decided to ban her for a temporary period. It explained when the ban would end and why the ban was being imposed. When it informed Miss X of this, the Care Home made it clear telephone communication could continue. There was no fault in how the Care Home made its decision or its actions.
42. However, the Care Home also banned the rest of the family from visiting Mrs Z. There was no record of breaches by other family members or any indication they had put either Mrs Z, other residents or the staff at risk of infection. Therefore, there was no basis to place a ban on the rest of the family. This was fault.
43. Although this is likely to have caused Mrs Z an injustice because she could not have visits from her family for 25 days, she has subsequently died and so I cannot consider whether a lack of visits during this period caused her any injustice. Although it is likely it caused Miss X distress, in considering the actions of both parties, I have not made a recommendation to remedy this.

Care Home’s handling of Miss X’s complaint and its notice to Mrs Z to leave

44. In January 2021, the Care Provider wrote to Miss X to say it was giving Mrs Z notice to leave.
45. When care providers take on the responsibility of a care package, they should make the utmost effort to ensure it works. They should not see termination of the contract as a suitable course of action except in the most extreme circumstances.
46. The evidence does not suggest this was an extreme circumstance. The Care Home was able to meet Mrs Z’s needs and the records indicate she appeared happy and settled. Miss X’s approach and relationship to some staff should not have put Mrs Z’s placement at risk. Although it is evident there had been a significant and irreconcilable break down in the relationship between the Care Home and Miss X, there were other, less disruptive, ways of dealing with the challenging situation other than giving notice. The ones suggested in the Care Provider’s emails to the Manager in January 2021 clearly indicated some of these.
47. The Care Provider should have formally written to Miss X, setting out the issues it had, what needed to change and the action it would take if that did not occur. The aim of this would have been to protect Mrs Z’s placement. If the situation had then failed to improve, this would still not make giving notice ideal but would evidence the Care Provider’s concerns and desire to resolve the situation. Its failure to do so was fault and was not in line with CQC Regulation 16.
48. Although ultimately Mrs Z did not move, it is likely to have caused Miss X some avoidable distress. The Care Provider should apologise to Miss X for this.

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Agreed actions

49. Within one month of the date of the final decision the Care Provider has agreed to apologise to Miss X for the distress it caused her when it gave Mrs Z two weeks’ notice to leave.
50. Within three months of the date of the final decision the Care Provider has agreed to ensure it has a process or policy in place for dealing with difficult relationships.

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Final decision

51. There was fault leading to injustice. The Care Provider has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman