Summary: Mr X complains the Council’s care provider, Villa Scalabrini, failed to follow Government guidance on using lateral flow tests to facilitate visits to his mother, causing avoidable distress to them both. There is no evidence of fault over this matter.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council’s care provider, Villa Scalabrini, failed to follow Government guidance on using lateral flow tests to facilitate visits to his mother, causing avoidable distress to them both.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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 councils and care providers followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.
5. 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

6. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X;
• considered the comments and documents the Council has provided in response to my enquiries; and
• shared a draft of this statement with Mr X and the Council, and invited comments for me to consider before making my final decision.

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What I found

7. Starting on 22 July 2020, the Government has issued guidance on visiting care homes during COVID-19 which it has updated regularly. The guidance has left individual decisions to care providers.
8. The guidance in place at the beginning of November 2020 said:
• “providers should supervise visitors at all times to ensure that social distancing and infection prevention and control measures are adhered to.”
9. The update issued on 5 November said:
• “social distancing (between visitors and residents, staff, and visitors from other households) must be maintained at all times – during the visit, and around the care home building and grounds.”
10. The update issued on 1 December said:
• all care homes – regardless of tier – and except in the event of an outbreak – should seek to enable:
1. indoor visits where the visitor has returned a negative test result; and
2. outdoor visiting and ‘screened’ visits;
• tests would be available for two visitors per resident twice a week;
• “if a visitor has a negative test, is wearing appropriate PPE (personal protective equipment) and following other infection control measures then it may be possible for visitors to have physical contact with their loved one, such as providing personal care, holding hands and a hug, although contact should be limited to reduce the risk of transmission which will generally be increased by very close contact” and
• interim measures for indoor visiting without testing only applied in Tier 1 areas (Villa Scalbrini was in Tier 3).

What happened

11. Mr X’s mother, Mrs Y, lives in the Villa Scalabrini, a residential care home. She has dementia.
12. It was not possible for families to visit residents during the first lockdown. Villa Scalabrini started allowing visits again from 28 July. The visits took place in a designated room which contained a glass screen to separate residents from their visitors. Communication was via intercom.
13. On 3 November 2020 Mr X complained to Villa Scalabrini that he had not been able touch his mother for nine months. He said he wanted to be able to see her at Christmas and would follow whatever precautions had to be in place, but he wanted to be close to her. He said he did not need to see his mother in a communal setting, but on their own in a well-ventilated room. He said the greater harm to his mother (than COVID-19) was not being close to her son.
14. When Villa Scalabrini replied on 13 November it said:
• it did not know what the situation would be at Christmas;
• but if it did not change, it would not be able to grant Mr Y’s request as it would not be in line with Government guidance;
• however, it may be possible for him to see his mother in the isolation area, but she would have to stay there for two weeks afterwards and someone would have to pay for the extra cost of one-to-one support.
15. Mr X replied on 15 November saying visitors should be tested for COVID-19 so they could hold their relatives.
16. On 28 November Villa Scalabrini told Mr X:
• the current guidance did not allow visits inside the care home;
• it would respond to any updated guidance;
• it had always gone beyond Government guidance, which meant it had kept the care home free of COVID-19;
• it could not say when in person visits would be possible.
17. Villa Scalabrini wrote to relatives on 10 December saying it would not be using lateral flow tests to change its visiting policies because of doubts over their safety and accuracy.
18. Mr X told Villa Scalabrini he was not happy about its attitude towards the testing kits. He said it should be using them if the Government was making them available. He said it was just focusing on physical wellbeing and ignoring emotional and spiritual wellbeing.
19. On 14 December Villa Scalabrini said:
• it was aware of the importance of physical contact for emotional and spiritual wellbeing;
• “the test kits do not provide us with the guarantee it is safe”;
• it was increasing the daily slots for visitors over the Christmas period.
20. Since Mr X complained to the Ombudsman, Villa Scalabrini has changed its policy on visits and is now using lateral flow tests. Mr X has been able to visit his mother in her room since she had a stroke.

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

21. The Council is accountable for Villa Scalabrini’s actions because it funds Mrs Y’s placement there (see paragraph 5 above).
22. The Government made testing kits available to enable indoor visits. However, it left individual care providers to develop their own policies on visits. Villa Scalabrini decided not to use the testing kits because it was not satisfied about their reliability. That was a decision it was entitled to take under the Government guidance and not one I can criticise.

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Final decision

23. I have completed my investigation on the basis there has been no fault.

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Investigator's decision on behalf of the Ombudsman