Summary: Ms X complains about the care her late mother received in Leeming Bar Grange Care Home, where the Council funded her placement from September 2019. The Council was at fault because the Care Home was not open with Ms X about her mother’s declining condition and, when advised to isolate her, the Care Home failed to do a proper risk assessment before deciding not to do so. The Council has agreed to apologise to Ms X and make a symbolic payment for the avoidable distress caused to her by not keeping her properly informed of her mother’s condition.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains about the care her late mother received in Leeming Bar Grange Care Home, where the Council funded her placement from September 2019. She says the Care Home failed to prevent her mother from catching COVID-19, address her mother’s declining condition or keep Ms X informed.

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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. 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

5. We have produced this statement after examining the relevant files and documents, and discussions with officers and Ms X.
6. We gave Ms X and the Council a confidential draft of this statement and invited their comments. The comments received from Ms X, the Council and the Care Home were taken into account before we completed the statement.

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What I found

Legal and administrative background

7. The Government first issued Guidance for social or community care and residential settings on COVID-19 on 25 February 2020, which it withdrew on 13 March. It said:
• “This guidance is intended for the current position in the UK where there is currently no transmission of COVID-19 in the community. It is therefore very unlikely that anyone receiving care in a care home or the community will become infected. This is the latest information and will be updated shortly.”
• “If the staff, member of the public or resident has not been to specified areas in the last 14 days, then normal practice should continue.”
• “Currently there is no evidence of transmission of COVID-19 in the United Kingdom. There is no need to do anything differently in any care setting at present.”
8. The country went into lockdown on 23 March. There was no specific guidance in place for care homes until the Government issued guidance on Admission and Care of Residents during COVID-19 Incident in a Care Home on 2 April 2020. This said:
• “Care homes should implement daily monitoring of COVID-19 symptoms amongst residents and care home staff, as residents with COVID-19 may present with a new continuous cough and/or high temperature. Assess each resident twice daily for the development of a fever (37.8°C or above), cough or shortness of breath. Immediately report residents with fever or respiratory symptoms to NHS 111, as outlined in the section below.”
• “Any resident presenting with symptoms of COVID-19 should be promptly isolated (see Annex C for further detail), and separated in a single room with a separate bathroom, where possible. Contact the NHS 111 COVID-19 service for advice on assessment and testing. If further clinical assessment is advised, contact their GP. If symptoms worsen during isolation or are no better after 7 days, contact their GP for further advice around escalation and to ensure person-centred decision making is followed. For a medical emergency dial 999.”
• “Staff should immediately instigate full infection control measures to care for the resident with symptoms, which will avoid the virus spreading to other residents in the care home and stop staff members becoming infected.”
9. The Government did not issue guidance on visiting care homes until July 2020.
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 intention of Regulation 12 is to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. Providers must assess the risks to people's health and safety during any care or treatment. Providers must also prevent and control the spread of infection.
11. Under the terms of our Memorandum of Understanding and information sharing protocol with CQC, we will send it a copy of this statement.

What happened

12. Ms X’s mother, Mrs Y, had advanced dementia. She had a history of chest and urinary tract infections. She used a walking frame to move about. She lived in the Care Home, which is a residential care home and does not therefore provide nursing care, for several years. Before COVID-19 Ms X used to visit every day.
13. The Care Home kept records of Mrs Y’s condition and the care provided for her. We summarise the key contents below.
14. Mrs Y first showed signs of being unwell on 28 March 2020. Later in the day she was “not very well” and had a chesty cough. She had good food and moderate fluid intake.
15. On 29 March Mrs Y ate and drank well. She was very chesty and had a runny nose. She spent time in the lounge and did not want to go to bed until late.
16. The record for 30 March says Mrs Y had a “settled day”. She had poor food but good fluid intake. The Care Home contacted a nurse practitioner over the telephone, who said to check Mrs Y’s blood pressure, pulse and temperature. After a care worker did this, the nurse said to isolate Mrs Y. The care worker spoke to a senior care worker who, according to the records, said they “wouldn’t” (Barchester, which runs the Care Home, says the care worker meant to say “couldn’t") isolate Mrs Y as she wouldn’t stay in her room all day. The nurse prescribed antibiotics for a chest infection. The Care Home told Ms X about the antibiotics on 31 March.
17. On 31 March Mrs Y still had a chesty cough, after having an unsettled night. She spent the day in the lounge, remained chesty and did not eat well. The Care Home updated Mrs Y’s care plan, saying she:
• had a DNACPR (do not attempt cardio-pulmonary resuscitation) order in place;
• wanted to remain at the Care Home when her health deteriorated and did not want admitting to hospital, but wanted her family around her; and
• wanted to be pain free and comfortable.

This reflected information Mrs Y had provided in 2016.

18. On 1 April Mrs Y still sounded chesty and coughed up phlegm. The Care Home received the antibiotics prescribed by the Nurse Practitioner for a chest infection, which Mrs Y started taking that evening. Her diet and fluid intake were poor “even with prompting”. She spent time in the lounge. Although this is not reflected in the Care Home’s records, when Ms X called it said her mother had a bad cold. According to its records, it told Ms X the antibiotics had arrived, Mrs Y remained in her room during the day and started coughing up phlegm.
19. On 2 April Mrs Y’s diet and fluid intake was very poor, as was her mobility. She refused to go to bed until about 01.30 on 3 April. The Care Home called the nurse practitioner who prescribed the antibiotics in liquid form. This was because Mrs Y remained unwell with a chesty cough and was struggling to swallow the antibiotic tablets.
20. On 3 April Mrs Y was very poorly and remained in her room. She felt sick and ate and drank little. Ms X visited her mother and spoke to her through the window.
21. On 4 April Mrs Y’s condition remained the same. Ms X spoke to her mother again through the window. Staff used a hoist to get Mrs Y into bed.
22. On 5 April Mrs Y’s mobility was poor and her food and fluid intake were very poor. Staff had to sit her up several times as she was sliding off her chair. The Care Home recorded Mrs Y’s observations:
• oxygen levels 58% (very low);
• blood pressure 144/126 (high);
• pulse 104 (high); and
• temperature 37.9 C (high).
23. The Care Home contacted NHS 111 which called 999 and an ambulance was sent. The ambulance took Mrs Y to hospital. Ms X arrived while the ambulance was there. Mrs Y returned to the Care Home around 22.20 for end-of-life care. The hospital sent her back because there was nothing it could do for her. The hospital stopped all her usual medication. It told the Care Home she should not have been sent to hospital in the first place. Ms X told the Care Home she wanted her mother to return there because she understood she would be able to sit with her. The Care Home said that would not be possible, as it was on lockdown. It offered to call the Regional Manager but Ms X said there was no need but to keep her mother comfortable. Ms X does not recall this conversation.
24. At 04.30 on 6 April, the Care Home received a call from the Hospital saying Mrs Y had tested positive for COVID-19. The Care Home’s records say Mrs Y was in pain. They say she went back to hospital around 08.00 or 09.50. There is nothing in the Care Home’s records to explain why Mrs Y went back to the hospital where she died. The Council says the hospital called the Care Home around 08.30, saying it should not have discharged Mrs Y back to the Care Home, and was sending an ambulance to return her to hospital.
25. Ms X complained to Barchester in May 2020. When replying in June, Barchester said:
• Mrs Y was not prescribed any medication for asthma, but was treated for recurring chest infections;
• the Care Home had locked down on 17 March, when asked to do so;
• it was difficult to address allegations that staff did not use personal protective equipment when they weren’t raised at the time, without having their names and because of staff changes;
• the Care Home had contacted a nurse practitioner over concerns that Mrs Y had a possible infection on 30 March. The Nurse said to isolate Mrs Y in her room and prescribed antibiotics to treat a chest infection. It informed her family of this on 31 March, following a call to the Care Home; and
• it apologised for telling Ms X her mother had a bad cold on 1 April, when Mrs Y’s condition had deteriorated.
26. As Ms X was not satisfied with Barchester’s response, she complained again. When Barchester replied in October 2020, it said:
• Mrs Y did not have a care plan for asthma as she received no treatment for it;
• when Mrs Y had a chesty cough on 30 March, the Care Home referred her to a Nurse Practitioner who asked for her observations, which were provided over the telephone, and prescribed antibiotics for a chest infection;
• Barchester had locked down its homes ahead of any formal guidance to do so;
• contractors had stopped working in the Care Home on 18 March;
• in the middle of March there was a lot of confusion over how COVID-19 was transmitted, including over the prevalence of asymptomatic carriers;
• Mrs Y had not received a letter from her GP requiring her to shield;
• there was no requirement to barrier nurse (a form of isolation) Mrs Y, which only applied to people with or suspected of having an infectious disease; and
• it apologised for problems arranging video calls.
27. When the Council replied to Ms X’s complaint in May 2021, it said:
• advice had been provided to care homes on the correct use of personal protective equipment, and updated when Government guidance changed;
• the Care Home contacted the GP Practice about Mrs Y’s condition on 30 March, 2 April and 6 April;
• under guidance now in place, Mrs Y would not have been discharged from hospital on 5 April without a negative COVID-19 test result;
• the hospital accepted a decision should have been made and documented on the COVID-19 swab test, which would have prevented Mrs Y’s readmission;
• there had been a delay of 6 days in returning Mrs Y’s unspent personal allowance after her death;
• paramedics overrode Mrs Y’s advanced care plan on 5 April because she was struggling for breath and needed oxygen which could only be provided in hospital; and
• it apologised for the distress caused and offered to pay Ms X £250 for the time and trouble caused in pursuing the complaint.
28. The Council says it was working with the Care Home to improve its practices before Barchester acquired it in January 2020. In January 2020 the Care Home voluntarily stopped taking new residents. After improving its practices and visits by CQC and the Council, the Care Home started taking new residents again on 11 March. The Council says it continues to work with the Care Home alongside the local Clinical Commissioning Group and CQC to improve practices. The last meeting was on 10 February 2021.
29. When CQC inspected the Care Home in February 2021, it found it was providing a “good” service overall. It was also satisfied the Care Home was meeting the requirements of infection prevention and control.

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

30. The early stages of the pandemic were a particularly difficult time for care homes, with shortages of personal protective equipment and a lack of testing to identify asymptomatic people with COVID-19. There were also frequent changes in Government guidance.
31. The records show that, despite being advised to isolate Mrs Y on 30 March, the Care Home did not do this as it believed she would not stay in her room because she would not understand the need to do so, due to her dementia. It failed to do a proper risk assessment before making that decision. Barchester says the care staff did an informal risk assessment, weighing up all the relevant factors. But we have seen no documentary evidence of this. We would have expected to see such evidence if the Care Home had done a proper risk assessment. According to the records made at the time, the only factor taken into account was Mrs Y’s dementia. On balance, the Care Home did not take all reasonably practicable steps to mitigate risk, to make sure it was as low as reasonably possible.
32. A week after the country went into a lockdown, staff should have been alive to the risks from COVID-19 and taken this into account in their risk assessment. Even if the nurse practitioner did not explain the reason for the advice and whether it was to protect Mrs Y from infection because of her vulnerability or to protect others if she had an infection, the Care Home should have been careful to reduce any risk of spreading infection. On balance, the failure to isolate Mrs Y is likely to have risked putting other residents and staff at risk of harm because she subsequently tested positive for COVID-19. This showed insufficient regard for Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which requires care providers to provide safe care and treatment.
33. The Care Home was not open with Ms X about her mother’s declining condition, which caused her distress, for which the Council is accountable. It told her she had a bad cold and had been prescribed antibiotics. But it did not tell her it had been advised to isolate her. This was a significant omission as it reflected an increased risk to Mrs Y either from contracting an infection or because she may already have had one. However, it could not have foreseen that she would die from COVID-19.
34. The decisions to send Mrs Y to hospital, return her to the Care Home and then recall her to hospital were all made by the NHS and are therefore not decisions for which the Council is accountable.

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Agreed action

35. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although we found fault with the actions of the Care Home, we have made recommendations to the Council.
36. We recommended the Council within four weeks of the date of this statement writes to Ms X apologising and makes a symbolic payment of a further £300 for the avoidable distress caused to her by not keeping her properly informed of her mother’s condition. The Council has agreed to do this.
37. We have not made a recommendation over improving infection prevention and control as CQC’s latest inspection shows the Care Home is meeting the current requirements.

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Final decision

38. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman