Summary: We have upheld complaints from Ms D, Ms K and Ms F about the actions of the Council, Home and Integrated Care Board in connection with the care of their late mother, Mrs M. There were faults in care planning and delivery, record keeping, contact management, communication, the administration of Deprivation of Liberty Safeguards (DoLS) and the Council’s safeguarding enquiry. The Council and Home have accepted our recommendations. We have now completed our investigation.

The complaint

1. The complainants (Ms D, Ms K and Ms F) complained about the actions of Stockport Metropolitan Borough Council (the Council), Bowerfield House (the Home) and NHS Stockport Clinical Commissioning Group (the CCG), in connection with the care of their late mother, Mrs M. NHS CCGs were abolished from 1 July 2022 and their functions taken over by Integrated Care Boards or ICBs. NHS Greater Manchester ICB (the ICB) has taken over responsibility from the CCG. For clarity, I will use ‘the ICB’ for both the old CCG and the current ICB in the rest of this statement. Ms D, Ms K and Ms F complained that:
• Mrs M received poor care at the Home between February and November 2020;
• the Home’s record keeping was flawed;
• the Home, in consultation with the Council and ICB, imposed flawed contact and visiting restrictions;
• communication with Mrs M’s daughters was poor;
• the Council’s safeguarding investigation was delayed and flawed;
• the Council failed to process the Home’s Deprivation of Liberty Safeguards (DoLS) authorisation request for Mrs M; and
• the Council’s and Home’s complaint handling was flawed.
2. The complainants said that as a result:
• they and Mrs M suffered significant avoidable distress;
• Mrs M was deprived of her liberty without proper authorisation; and
• they experienced significant frustration and were put to avoidable time and trouble in trying to progress their complaints.
3. The complainants’ desired outcomes are:
• service improvements;
• staff training;
• a financial remedy which could, if appropriate, be paid to a charity of their choice; and
• meaningful written apologies.

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The Ombudsmen’s role and powers

4. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
5. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
6. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
7. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
8. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
9. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
10. 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

11. I have considered:
• information the complainants provided in writing and by telephone;
• written responses to my enquiries from the organisations subject to this complaint. These include care records and records of communication; and
• relevant law and guidance, which I have referred to as appropriate in this statement.
12. The ICB funded Mrs M’s care at the Home between 26 February and 12 October 2020. The Council funded her care there between 13 October and 17 November 2020. Because of these funding arrangements, for the purposes of our investigation the Home was a health provider between 26 February and 12 October 2020, and a social care provider acting on behalf of the Council between 13 October and 17 November 2020. Our findings and recommendations reflect this where relevant.
13. The complainants, the Home, the ICB and the Council have had an opportunity to comment on a draft version of this decision. I considered their comments before making a final decision.

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What I found

14. Before moving to the Home, Mrs M lived in her own home with support from Ms K and a care agency. She had a diagnosis of dementia since 2017.
15. In early January 2020, Mrs M contracted an infection and went into hospital. After some time in hospital, her care needs increased, and she was discharged to the Home on 26 February 2020. The initial admission was intended to be a six week respite placement, waiting for assessment. However, in March 2020 the Home went into lockdown. This delayed Mrs M’s assessment. Mrs M stayed in the Home until she died on 17 November 2020.

A - Quality of care

Fundamental standards of care

16. 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 CQC has issued guidance on how to meet the fundamental standards which care must never fall below. The following Regulations are relevant to the issues on this complaint.
• Regulation 9 says care must be appropriate, meet the needs of service users and reflect their preferences. This includes involving people in care and their legal representatives in care planning and providing them with relevant information.
• Regulation 12 is about safe care and treatment, and mitigating risks to service users. This extends to equipment that is safe and fit for purpose and safe management of medicines.
• Regulation 14 says care providers must meet people’s nutritional and hydration needs, except when this would not be in their best interests.

End of life care

17. The NHS defines end of life care as support for people who are in the last months or years of their life. It is not limited to the last few days of a person’s life. People are considered to be approaching the end of life when they are likely to die within the next 12 months, although this can be difficult to predict.
18. The National Institute for Health and Care Excellence (NICE) has published a guideline [NG31] on the care of dying adults in the last days of life. This covers the care of adults during the last two to three days of life. It says:
• it can often be difficult to be certain that a person is dying; and
• individual clinical judgement is needed to make decisions about the level of certainty and managing any uncertainty.

What happened

19. This is not a detailed chronology. Instead, I have set out below key points from the evidence I have seen related to Mrs M’s care at the Home.
20. The Home did a pre-admission assessment of Mrs M’s needs before she moved there. The assessment noted that:
• Mrs M lacked capacity to make decisions for herself and the Home needed to apply for a DoLS authorisation; and
• overall, she had high needs and needed nursing.
21. The Home’s records of Mrs M’s first few months at the Home say she was going into the lounge. The Home’s records say she was nursed in bed from
    10 November 2020. However, a record of an assessment done by the ICB says she was nursed in bed by 13 October 2020. Other records from the complainants and the Home suggest she may have been nursed in bed from as early as August 2020.
22. Records indicate Mrs M had:
• several urinary tract infections (UTIs) while she was at the Home, for which she received appropriate care; and
• instances of having sore or reddened skin, pressure sores and small skin tears, which the Home treated.
23. Mrs M was doubly incontinent. Her continence care plan said staff should check her pads at least every two hours, wash and dry her skin and apply her prescribed cream. Mrs M’s care records do not reflect this; some do not show any personal care for a whole day. Mrs M’s care plan for personal hygiene says she should have a bath or shower at least three times a week. However, the Home only recorded Mrs M having showers on eight occasions. There are no records of Mrs M having baths. The Home did not change this care plan after Mrs M started to be nursed in bed, despite it being impossible for her to use the shower or bath at that point.
24. Mrs M had two falls in June 2020. On the first occasion, she fell when showering and on the second, she fell from a toilet. Records indicate the Home responded appropriately to the falls. However, they also show the second fall happened because of an unsafe toilet seat. The Home ordered a new seat after the fall.
25. Mrs M’s nutrition and hydration care plan dated 6 June 2020 said she had lost a small amount of weight. It said the Home should therefore:
• weigh Mrs M monthly from then on; and
• complete a malnutrition screening tool every month.
26. There are no records the Home carried out malnutrition screening in August, October and November, contrary to the care plan. Between July and September:
• Mrs M lost about 10kg in weight;
• Mrs M’s body mass index (BMI, a measure used to indicate healthy weight) dropped from 20 (within the healthy range) to 17 (in the underweight range); and
• Mrs M’s risk of malnutrition also rose from medium to high.
27. Mrs M’s skin integrity care plan dated June 2020 said her skin was intact; she needed pressure relief every two hours when sitting; and every four hours when in bed. In July 2020, care records say:
• staff had discovered a pressure sore on Mrs M’s hip and she therefore needed repositioning every two hours; and
• the Home was waiting for a review of Mrs M’s air flow mattress (a mattress designed to relieve pressure on parts of the body), which was faulty.
28. The Home did not change Mrs M’s skin integrity care plan to reflect this. Mrs M’s care records also do not always show she received the regular repositioning she should have had.
29. In early October 2020, a new resident went into Mrs M’s bed twice. Mrs M’s records say she did not suffer harm as a result. However, her daughters did not find out about this incident until they read Mrs M’s care notes after she died. They also consider the incident caused psychological distress and a skin tear on
    Mrs M’s arm, recorded in Mrs M’s notes at a similar time as the incidents.
30. Medication records indicate the Home left medication patches, used to treat symptoms of Alzheimer’s disease, on Mrs M’s skin for longer than the prescribed 24 hours on at least four occasions in October and November 2020.
31. The Home produced an end of life care plan for Mrs M in June 2020 in preparation for when it was decided she was at that stage.
32. Mrs M’s care notes for November 2020 indicate a decline in her eating and drinking from the already poor levels reported in September and October.
33. On 12 November 2020, the Home told Mrs M’s social worker that it may need to give notice requiring Mrs M to leave. This was because of what the Home considered unreasonable demands from family for updates and calls, over and above what other families were getting.
34. The Home’s records show it noticed on 16 November 2020 that Mrs M’s knee was red, swollen and hot. It emailed a photograph to Mrs M’s GP and told the GP that her food and fluid intake had deteriorated further. The Home’s staff have said in a statement that the GP advised monitoring and regular paracetamol. Ms D also raised concerns with Mrs M’s GP that the swelling in her knee could be caused by a blood clot. The GP practice told Ms D that the GP would review
    Mrs M the following day. Mrs M’s daughters are concerned that the Home did not tell them or the GP that Mrs M’s foot had also been swollen in the days leading up to her death, and that staff did not check her blood pressure, heart rate and oxygen saturation levels.
35. Mrs M died on the following day, before the GP or her family could see her.

Was there fault in the quality of care that caused an injustice

36. Failing to identify Mrs M was approaching the last days or hours of her life in November 2020 was not fault by the Home. It can be difficult for health and care professionals to identify that a person is in the last days or hours of their life. Some of the concerns the Home identified at the time, such as swelling and decreased appetite, can be present in a person’s last days or hours. However, they do not necessarily mean a person is about to die soon. There is nothing in the evidence I have seen to indicate the Home had missed an obvious opportunity to identify Mrs M was in the last few hours of her life on 16 or 17 November 2020.
37. However, the Home was aware that Mrs M was at the ‘end of life’ as defined by the NHS for several months before she died. Despite this, there is no record the Home discussed this appropriately with Mrs M’s daughters or amended her end of life care plan. This was fault.
38. Contrary to Regulation 9, the Home:
• limited giving Ms D and Ms K information about Mrs M’s care, despite them having power of attorney for her health and welfare;
• did not give Mrs M’s daughters a clear explanation of what constitutes ‘end of life’ or confirm to them when Mrs M was considered to have entered this stage; and
• did not update Mrs M’s care plans to reflect important changes such as being permanently nursed in bed and needing more frequent repositioning.
39. Contrary to Regulation 12, the Home:
• used an unsafe toilet seat and a faulty pressure relief mattress for Mrs M;
• did not manage Mrs M’s medicines correctly;
• failed to screen Mrs M for malnutrition every month, as required by her care plan; and
• failed to record what action, if any, it took when Mrs M’s already poor eating and drinking declined in November 2020.
40. These were all faults. We cannot say now, even on balance of probability, how the faults affected Mrs M’s quality of life. It is unclear for example, whether Mrs M did not get showers, baths, personal care and repositioning in accordance with her care plans, or whether she did, but the records are simply incomplete. We also cannot say whether any faults in care caused or contributed to her developing the pressure sores recorded in her records in May, June and July 2020.
41. However, Mrs M’s daughters are left with the distressing uncertainty about the impact on their mother, and whether she suffered harm or distress because of the faults. This is over and above the distress they would inevitably have experienced as relatives of a person at the end of their life and in residential care during the COVID-19 pandemic. This was an injustice to the complainants. At the end of this statement, we have recommended symbolic payments to the complainants in recognition of their avoidable distress.

B – Record keeping

Relevant law and guidance

42. Regulation 17 is about good governance. It includes having systems and processes in place to maintain an accurate, complete and contemporaneous record of people’s care and treatment.
43. The Nursing & Midwifery Council (NMC) has published guidance called The Code for nurses. Section 10 of The Code says nurses must:
• complete all records at the time or as soon as possible after the event;
• complete all records accurately; and
• ensure records are clearly written.

What happened

44. This is not a detailed chronology. I have set out below key points from the evidence I have seen relating to the Home’s records of Mrs M’s care.
45. The Home did not record Mrs M’s normal (or ‘baseline’) vital signs such as temperature, heart rate, breathing rate, blood oxygen and blood pressure when she moved into the Home. Some of Mrs M’s ‘about me’ records are also incomplete.
46. The Home should have completed care plans for Mrs M when she was admitted there in February 2020. It should then have reviewed them every month. It completed care plans for a safe environment and respite in February. It did not write care plans for the rest of Mrs M’s care until June. The respite care plan says Mrs M ate unaided, which is incorrect. The Home did not start reviewing her care plans until July 2020.
47. The home has records of mattress checks for May 2020 but not for other dates. This is despite the concerns raised about a faulty mattress in July.
48. There are no records of a bed rails assessment before 10 June 2020. The assessment is not counter-signed by Mrs M’s representatives. The corresponding Best Interest record indicates that Ms K was involved in the decision, but Ms K does not recall this happening. This assessment should have been reviewed at least monthly, but there is no record of a review for October.
49. Not all fields were completed for some personal care records.
50. Several daily care records from May and August 2020 are missing.
51. The daily care records for 3 and 4 October are illegible. These include the incident of another resident getting into Mrs M’s bed.
52. Records of contact between Mrs M and her family are available for May to November, but not February to April 2020.
53. Records of contact between the Home and Mrs M’s family are available for June, July and September, but not February to May, August, October and November 2020.
54. Mrs M’s hydration risk assessments were completed for March and April 2020, but not for the rest of her stay in the Home.
55. The Home did not always fill in medication records for Mrs M’s creams completely. It also did not complete medication records for her anti-nausea tablets between 20 April and 17 May 2020. There is no indication of the reason, for example that Mrs M did not need the tablets in that period, or refused to take them.

Was there fault in relation to record keeping that caused an injustice?

56. The errors and omissions listed above are contrary to Regulation 17 and NMC’s The Code. They are therefore faults. We cannot say now whether these faults caused Mrs M an injustice. Nor can we recommend a remedy for her, as she has died. However, the errors and omissions have caused the complainants distressing uncertainty about whether they reflect errors and omissions in their mother’s care. This is an injustice for which we have recommended remedies at the end of this statement.
57. The Home has already accepted that there were flaws in its record keeping as part of the Council’s safeguarding investigation. The flaws we have identified happened around two years ago, during a period of unprecedented pressure on care homes. CQC inspections which happened in 2020, 2021 and 2022 also considered samples of the Home’s records. We will share our final decision with the CQC. We have therefore not made any recommendations for service improvements in this area.

C – Contact restrictions and communication with complainants

Relevant law and guidance

58. The Government published guidance for visiting people in residential care during the COVID-19 pandemic. It amended this guidance several times between March and November 2020.
59. In March 2020, before the first national lockdown, the guidance advised care providers to review their visiting policies, taking into account the wellbeing of residents and the positive impact of seeing friends and family.
60. During the first national lockdown, people were not allowed to leave their homes, even to meet family in care homes.
61. In July 2020, the national guidance was that visiting policies should consider the local and individual circumstances of each care home, including guidance from the local area’s director of public health. The guidance said:
• any restrictions on visiting should have regard to exceptional circumstances such as end of life;
• decisions on visiting needed a risk assessment which considered the risks and benefits of visits to individual residents and the other residents in that setting;
• if a care home’s visiting policy allowed for a different approach to individuals or groups, it needed to explain what factors were relevant to that decision;
• where a care home took a different approach to certain residents, it should have actively involved their relatives; and
• “even where in-person visits are permitted, alternatives to in-person visiting should be actively explored, facilitated and encouraged, such as the use of telephones or video”.
62. In addition to national guidance, the Government imposed extra restrictions in the Stockport area between 31 July and 2 September, and between 26 September and 11 October 2020. These meant that visits to people in care homes were only allowed in exceptional circumstances.
63. The updated national guidance issued on 15 October 2020 was broadly similar to the guidance from July, but also said:
• in areas with a high local COVID-19 alert level, visiting should be limited to exceptional circumstances such as end of life;
• visiting should be limited to a single, or a maximum of two constant visitors per resident; and
• social workers could help with individual risk assessments for visits and advise on decision-making where the resident lacked capacity to decide for themselves. This should include an individualised risk assessment to assess the rights and needs of individual residents, specific vulnerabilities, and the role visiting can play in this. In doing this, care providers should actively involve residents’ relatives.
64. The updated guidance issued on 5 November 2020 continued to support control on visiting due to COVID-19. This included stopping all but essential visits where risk assessments identified these were appropriate. However, it also said the following.
• “Maintaining some opportunities for visiting to take place is critical for supporting the health and wellbeing of residents and their relationships with friends and family.”
• “We recognise how important visiting is as residents approach the end of their lives. As has been the case throughout the pandemic response visits in exceptional circumstances such as end of life should continue in all circumstances.”
65. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to including respect for private and family life (Article 8) and the right to liberty and security (Article 5).
66. The Act requires all local authorities and other bodies carrying out public functions to respect and protect individuals’ rights.
67. Not all rights operate in the same way. The right to respect for private and family life is a ‘qualified’ right. This means that interference with it may be justified to protect the rights of others or wider public interest. Any interference with a qualified right must:
• be in accordance with the law;
• be in pursuit of a legitimate aim;
• be no more than necessary to achieve the intended objective; and
• not be arbitrary or unfair.
68. Our remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But we can decide whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
69. In practical terms, organisations will often be able to show they have complied with the Human Rights Act if they can:
• show they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.

What happened

70. Ms K was dissatisfied with the level of contact she had with Mrs M between late March and late April 2020. She was dissatisfied with staff not making it possible for her to have window visits and leaving Mrs M alone and without help during video calls. Mrs M was unable to manage the equipment for video calls on her own due to her condition.
71. The Home made a record stating that one of Mrs M’s daughters (it is unclear who) was abusive in a telephone conversation with a staff member on 15 May 2020. There is no record of the Home informing the daughter who made the call of the concerns or of any consequences of continuing such behaviour. Mrs M’s care was NHS funded at the time, so the Home contacted the ICB to express its concerns about this call.
72. Mrs M’s care plan for social interaction (dated 6 June 2020 and reviewed monthly to November 2020) says that Mrs M enjoyed visits and phone calls from her three daughters and family.
73. The available records show that Mrs M had visits from her daughters at least once a month between June and November 2020. The complainants have told us they had no physical visits from August. There are also records of four video calls between May and August 2020.
74. On 21 September 2020, the Home became concerned that Ms F had recorded a video call without the consent of the staff who were present. Ms F said this was an accident because she was having problems with the technology. The images she has shared with us show a recording of Ms F rather than anyone else. The Home contacted the ICB and expressed concerns that all three daughters were calling every day to ask for information. The complainants dispute this version of events and have provided records indicating their calls for updates were less frequent. The ICB advised the Home to request that only one family member calls the Home for updates and cascades information to the rest of the family. The ICB’s case notes indicate it gave the same information to Ms D and she welcomed the suggestion. Ms D says she accepted the suggestion as she felt she had to. There is nothing in the ICB’s or Home’s records to indicate the ICB advised the Home to limit visiting or the family’s contact with Mrs M.
75. The Home sent an email to all three of Mrs M’s daughters following its contact with the ICB on 21 September. The email expressed concern about Ms F recording a video call. The email also said the following.
• “You all call and ask the same questions to a number of staff and the staff find your tone rude.”
• “The [ICB and Home’s management] are in agreement that the home will only speak to one nominated person from the family, to give information about [Mrs M’s] condition.” They would not be able to get information from anyone other than the nurse on duty or management.
• The Home’s manager could send all three sisters a weekly update email if they wanted this.
76. Ms F responded to say she may have recorded the call by accident when she was trying to reconnect a call following connection problems.
77. On 21 and 22 September, Ms D contacted the ICB as the Home had told her the ICB had recommended restricting visiting to one person. The ICB noted COVID-19 restrictions meant no visiting was allowed. This was not accurate as the area was not subject to special restrictions on that date. Visits to people at the end of their life were also permitted throughout the period between July and November 2020. Ms D felt the ICB’s discussions of her concerns about staff behaviour with the Home had breached her right to confidentiality.
78. A log the Home kept shows Mrs M’s daughters had contact with Mrs M as follows in October and November 2020.
• 10 video calls. Two of these were with Ms F.
• 15 telephone calls, none of which were with Ms F.
79. Mrs M’s daily care notes dated 6 November 2020 refer to a video call with Ms F. Ms F was concerned about some bruising on Mrs M. The record says:
• “photographs were taken but apparently [Ms F] was ‘unaware’ that she had done this”;
• Mrs M “does have some discolouration to her arms this is part of the ageing process and the fragility of her skin. They appear as 'bruises' but they are not”; and
• Mrs M’s observations were stable and care workers encouraged her as much as possible to eat and drink, but she would clamp her mouth shut.
80. On 9 November 2020, the Home emailed Mrs M’s social worker to advise her that it would be suspending future video calls with immediate effect. The Home also emailed Mrs M’s daughters stating it had spoken with Mrs M’s social worker and that Ms F could no longer have video calls with Mrs M “following her conduct now on two occasions”. The Home said the unwanted contact was recording or taking screenshots during the call of 6 November and one about four weeks earlier, as well as swearing during the call of 6 November. The emails also said the Home would be starting window visits the following week and facilitating those would take up much of the activities coordinator’s time. Therefore, the Home could only facilitate one video call a week for Mrs M. The Home would also look into how to help Mrs M have a window visit. Mrs M’s daughters questioned how it would be possible for Mrs M to have window visits given she was nursed in bed and her room was not on the ground floor.
81. On the same day, Ms K contacted Mrs M’s social worker about the contact restrictions. She was concerned the Home was limiting her video calls to Mrs M even though she was not part of the video call of 6 November. The social worker’s note of this conversation says:
• the social worker suggested that Ms K should be the only point of contact for video calls;
• family members should not all contact the Home individually for video calls with Mrs M because staff did not have the time to support this; and
• Ms K “was very understanding about this arrangement”. Ms K disputes this and says she felt she had no option but to agree.
82. The social worker’s record goes on to say:
• she informed the Home of her suggestions;
• the Home agreed to reinstate calls with Ms K only; and
• moving forward, the Home would facilitate one call a week with a second call being a possibility, depending on staffing levels and tasks.
83. Around this time, Ms K asked the Home if she could have photographs or videos of her mother. Mrs M’s social worker supported this. The Home told Ms K it would ask its parent company’s data protection officer for advice because Mrs M did not have the capacity to consent to photographs or videos. The social worker’s records of 13 November also state “Care Home have rejected the idea of making videos as they have their own reservations about family. According to [Home staff member] “I do not agree with this, [Mrs M] lacks capacity and most importantly when the family are so accusing of Bowerfield House I do not trust they will keep this video confidential”.”
84. The social worker discussed the situation with a manager and decided to have a best interests meeting regarding Mrs M’s potential move to another care home or to live with family. The Council organised a formal assessment of Mrs M’s capacity to make decisions about this for 16 November, with a best interests meeting to follow.
85. On 16 November, Mrs M’s medical condition worsened. The Council, following discussion with the Home and Ms K, decided to postpone the best interests meeting until Mrs M started to eat and drink again. Mrs M died the following day.
86. Following a complaint from Ms K which included concerns about the Home’s refusal to send videos or photographs of Mrs M, the Home said:
• this would have been discussed at the postponed best interest meeting;
• there would have been no issue with a video;
• and it was sorry this did not happen.

Was there fault in relation to contact and communication that caused an injustice?

87. The ICB was responsible for overseeing Mrs M’s care until 12 October 2020. I have seen no records to indicate it sought to restrict the complainants’ contact with Mrs M, or that it advised the Home to do so. Records indicate that Mrs M’s family wanted more detailed information from the Home about Mrs M than the Home was prepared to or able to provide. I was not present when the conversations happened so I cannot make findings on the exact content or nature of the conversations between the Home and Mrs M’s daughters. However, there is nothing inherently unreasonable about family members who live in different parts of the world, wanting to check for themselves how their mother is every day, especially during a pandemic and when they cannot visit her. We would need to balance this expectation against the ability of a care home to facilitate multiple daily calls during a pandemic. The ICB made a reasonable suggestion that the Home could provide one daily telephone update on Mrs M’s condition to one family member, for that person to cascade this information to the rest of the family. Ms D agreed to this at the time. There was no fault in the ICB’s actions here.
88. Part of Ms D’s complaint is that the ICB discussed her concerns about relationships with staff members with the Home in September 2020, thereby worsening an already strained relationship. While the ICB did discuss Ms D’s concerns with the Home, it was entitled to do this as part of a reasonable attempt to resolve the communication problems between the Home and Mrs M’s family. I have seen no evidence the ICB discussed inappropriate matters with the Home. The ICB’s discussion with the Home was not fault.
89. The ICB did however tell Ms D that visiting was not allowed around 22 September 2020. There were no local or national COVID-19 restrictions prohibiting visits to care homes on that date. Families could also visit relatives who were considered to be at the end of their life, even when restrictions came into force later that month. Failure to provide correct information about visiting restrictions was fault.
90. Mrs M was considered to be at the end of her life from around July 2020. As set out in Section A above, there was fault by the Home in the way it planned Mrs M’s end of life care, determined whether and when Mrs M was at the end of her life, and communicated about this with her family. It was also fault for the Home not to offer or consider the possibility of in person visits by family members as Mrs M was considered to be at the end of her life. The Home should have had a policy on visits, which included considering the risks of such visits. Unless a risk assessment identified unacceptable risks from visits, it should have allowed them. The faults are likely to have had an impact on how often Mrs M and her daughters could see each other in person in the last four months of her life. This is because guidance said that people could visit residents who were at the end of their life even when other visits to care homes were not allowed.
91. The Council assumed overall responsibility for Mrs M’s care from 13 October 2020. From that point, the Home was acting on behalf of the Council in terms of meeting Mrs M’s social care needs. The Home incorrectly told Mrs M’s daughters that Mrs M’s social worker supported the suspension of video calls. It also told the complainants that its concern about providing videos of their mother was based on her capacity to consent, despite admitting to the Council it had already rejected the idea, primarily because it did not trust the complainants to keep videos confidential. These were faults.
92. Limiting contact by relatives whose behaviour is abusive or harmful to staff or residents is something care homes are entitled to do. But we would expect them to keep accurate, contemporaneous records of behaviour they considered abusive or harmful and tell the person their behaviour is unacceptable and what the consequences are. They should also not exclude other family members from contact unfairly. In this case, the Home had records of two instances of what it considered inappropriate behaviour by Ms F. However, it sought to limit Mrs M’s contact with her other daughters without any documentary evidence that it had the grounds to do so. As well as being unfair, this was contrary to Mrs M’s social interaction care plan, Regulation 10 and the national COVID-19 guidance for care homes in place at the time.
93. The Council organised a best interest meeting later in November to discuss a possible move for Mrs M away from the Home. However, there are no records of the Council or Home considering Mrs M’s best interests or her and her family’s Article 8 rights either explicitly or implicitly when restricting her contact with her daughters in November 2020. This was fault.
94. The faults we have identified in this section have added to the complainants’ avoidable distress.

D - Council’s safeguarding investigation

Relevant law and guidance

95. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (Section 42, Care Act 2014)

What happened

96. The Home made a safeguarding alert to the Council on 12 November 2020 because it wanted to stop video calls with Mrs M’s family. The Council decided this did not require safeguarding enquiries. It advised the Home that a best interest meeting and mediation needed to take place.
97. Ms K and Ms F made safeguarding alerts to the Council in December 2020. They raised concerns about:
• the impact of restricting Mrs M’s contact with her daughters;
• the quality of Mrs M’s care, especially fluid intake, diet, repositioning and personal care; and
• a lack of DoLS authorisation.
98. The Council opened a safeguarding enquiry in December 2020. It held a strategy meeting in January 2021. It decided to continue investigating and hold a second meeting once it had gathered all the information it needed.
99. As part of its safeguarding investigation, the Council contacted Mrs M's GP in February 2021. He told the Council:
• he had no safeguarding concerns about Mrs M’s general care and considered she was in an appropriate placement;
• Mrs M was placed on an end of life care pathway in July 2020. This was not to say that she was in her last days of life, but that her treatment was focused on comfort and dignity; and
• Mrs M improved after this date and continued with a pattern of reduced fluid intake and then rallying later on.
100. The Council held a second strategy meeting in March 2021. It says the delay was because of diary conflicts for attendees. Present were officers from the Council, Home and ICB. Key points from the meeting were as follows.
• The Home accepted there were flaws in its assessments of the risks of Mrs M’s skin breaking down. However, it considered this did not cause problems for Mrs M. This was because her risk of skin breakdown would have been the same even if the assessments had been correct. It also said Mrs M did not suffer from skin breakdown.
• The Home accepted some of its care records did not match or showed omissions in recording which raised concerns about omissions in personal care.
• Mrs M was nursed in bed well before the date in her records.
• The Home was trialling an electronic recording system which it hoped would be an improvement on the paper records in place when Mrs M was there. The Home was also aware of support available from the Council and ICB should there be future relationship breakdowns, or concerns about DoLS.
• The Home expressed its views about what it considered unacceptable behaviour by Mrs M’s family and that the Council had advised it to stop contact with Ms F. The Council considered the evidence did not support the Home’s view that the Council had advised it to stop contact.
• The Council confirmed Mrs M had been unlawfully deprived of her liberty and that Article 8 rights had been engaged.
• The professionals decided the Home had not neglected Mrs M through poor personal care, and that it had not emotionally abused her through stopping contact with her family.
101. The Council emailed Ms D the outcome of the strategy meeting on 13 April 2021. On 21 April 2021, Ms D asked the Council for copies of the minutes of the two strategy meetings, together with an explanation of why the Council had not dealt with the Home’s DoLS request before Mrs M died. She said she was shocked to find out the outcome of the safeguarding enquiry on a third party website rather than from the Council. Soon after this, the officer who had been dealing with the safeguarding inquiry started a long term sickness absence.
102. The Council sent Ms K and Ms F details of the safeguarding enquiry outcome in June 2021. The Council apologised to Ms K for not doing so sooner.
103. On 8 June, the Council apologised to Ms D for the delay in providing the information she had asked for in April. It had still not provided it by the time Ms D chased this on 29 June and 19 July. The Council passed Ms D’s concerns about the delay to its complaints team on 29 June. Ms D clarified she wanted to complain about both Mrs M’s care and the safeguarding investigation. On
     9 August, the Council apologised to Ms D again for the delay in responding to her. It sent her the minutes of the safeguarding meetings on 8 September.

Was there fault regarding safeguarding that caused an injustice?

104. The Council dealt appropriately with the initial safeguarding alert from the Home. It considered the relevant issues and how the dispute about video calls could be resolved in Mrs B’s best interests. I have therefore found no fault in the way it decided not to start a section 42 enquiry at this stage.
105. The purpose of a safeguarding enquiry carried out under section 42 of the Care Act 2014 is to determine whether any action is needed regarding the person at risk.
106. By the time the Council received concerns which it considered met the threshold for a section 42 enquiry, Mrs M had died, so no action could be taken to protect her. Nevertheless, the Council chose to carry out an enquiry. I have therefore considered how the Council carried out the enquiry and communicated with
     Mrs M’s daughters.
107. The Council started the enquiry in January 2021 and completed it in March. I have found no significant delay that amounts to fault in this period.
108. The Council has not explained why the enquiry concluded Mrs M did not suffer from skin breakdown, despite Mrs M’s care records stating she had pressure sores in May, June and July 2020.
109. The Council has also not explained why the enquiry concluded there had been no organisational abuse, despite also confirming that Mrs M had been unlawfully deprived of her liberty for about nine months.
110. The Council took too long to tell all of Mrs M’s daughters about the outcome of the enquiry and to share the minutes of the strategy meetings. I note a key staff member was on extended sick leave. However, this started more than a month after the safeguarding enquiry had concluded. Also, the information the complainants wanted was readily available, rather than something that would need significant time and knowledge to create.
111. These were faults, which added to the complainants’ avoidable distress.

E – DoLS

Relevant law and guidance

112. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves.
113. A key principle of the Mental Capacity Act 2005 is that any act done for or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
114. The Deprivation of Liberty Safeguards (DoLS) are the result of an amendment to the Mental Capacity Act 2005 which came into force on 1 April 2009. The DoLS provide legal protection for individuals who lack mental capacity to consent to care and treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.
115. The statutory DoLS Code of Practice says the ‘managing authority’ of the Home must request authorisation from the ‘supervisory body’ (the Council) as soon as it identifies a person is at risk of being deprived of their liberty in the next 28 days. The Council must then carry out six assessments within 21 days before deciding whether to authorise a deprivation of liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of care homes or hospitals to apply for DoLS authorisations.
116. The Supreme Court decided on 19 March 2014, in the case of P v Cheshire West and Chester Council and another and P and Q v Surrey County Council, that deprivation of liberty occurs when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
117. Urgent authorisations are made by managing authorities, for seven days, pending application for a standard authorisation or while awaiting a response to a standard authorisation request. In exceptional circumstances, a supervisory body can extend an urgent authorisation to a maximum of 14 days.
118. Regulation 13 is about safeguarding service users from abuse and improper treatment. This says care homes must not deprive people of their liberty for the purpose providing care or treatment, without lawful authority.
119. The Council has a screening tool to prioritise the allocation of DoLS requests. It has adapted this from a screening tool developed by the Association of Directors of Adult Social Services (ADASS). ADASS’s guidance says, “The use of this tool must be balanced against the legal criteria for the Deprivation of Liberty Safeguards which remains unchanged”.
120. Article 5 of the Human Rights Act 1998 is the right to liberty and security. It is a limited right, and a lack of resources is not a legitimate reason for failing to protect it.
121. The Council has not shown us its screening tool for the period of this complaint. The screening tool it has shown us, dated January 2021, has criteria for ordering requests into higher, medium, or lower priorities. The criteria for higher priority requests include:
• restrictions of family contact or other Article 8 issues; and
• confinement to a part of the Home for a considerable time.
122. The Council does not have targets for dealing with the different priorities of request.

What happened

123. The Home requested a DoLS authorisation from the Council on 23 April 2020.
124. Following a telephone call with the Home on 4 May 2020, the Council triaged the DoLS request as low priority. Its reasons were as follows.
• There was minimal evidence of supervision and control.
• Apart from help from staff to move around and for personal care, Mrs M was largely independent and spent a lot of time on her own doing activities of her choice.
• Mrs M was settled and contented in the Home.
125. Ms D contacted the Council’s DoLS team on 10 November 2020 to say she and her sisters were concerned about the Home’s restriction on video calls. The Council suggested this may be a safeguarding concern that should be referred to its contact centre. The Council asked its duty team to follow this up the next day.
126. A Council social worker contacted Ms D on 11 November 2020 to get more information. The social worker then asked Mrs M’s social worker for more information and sought advice from a manager. As Ms D’s concern raised issues around Article 8, the Council decided to change the priority for a DoLS assessment and allocate the assessment to a social worker to carry out.
127. On 16 November 2020, the DoLS social worker made further enquiries with
     Mrs M’s social worker and the Home. The DoLS social worker advised them that Mrs M’s right to contact with her family needs to be protected. Mrs M died the next day, before the Council could complete the DoLS assessments.
128. In response to our enquiries, the Council told us the following about DoLS authorisation backlogs it had between February and October 2020.
• During this period, it received 588 urgent requests and 209 standard requests.
• It completed assessments within 21 days for 145 standard requests. It also completed assessments for 22 urgent requests before the urgent authorisation expired.
• For the remaining requests, 225 people died before the council issued a decision. 238 requests were still outstanding six months after receipt. At the end of August 2021, 169 of the requests remained outstanding.
129. The Council also told us the following about delays in the DoLS process.
• Since the Supreme Court judgement in 2014 the Council has had an increase in the number of DoLS referrals without additional resources to deal with them. This led to a backlog and delay in assessments and authorisations.
• It changed its electronic care records systems in April 2020. This happened during the first national COVID-19 lockdown. Staff had to work at home away from the office and away from the usual hands-on support from IT professionals. Staff were also affected by COVID-related sickness.
• Social workers who were trained to carry out the specialist assessments required for DoLS authorisations were diverted to COVID-19 related work during the peak of the pandemic and its aftermath.
• Government public health guidance around visiting care homes and hospitals added to delays in processing DoLS requests.
• As of October 2021, the Council was in the process of outsourcing DoLS assessments with a view to reducing the backlog. It has also provided extra full time admin support workers. The social workers who were diverted to
  COVID-19 related work have moved back onto the DoLS rota to help reduce the backlog.

Was there fault causing injustice relating to DoLS

130. The Home did not apply for a DoLS authorisation between February and April 2020, despite noting this was necessary. This was fault.
131. The Council should be carrying out assessments for standard authorisation requests within 21 days. In the period we have investigated, the Council completed assessments within 21 days for only about a quarter of the 588 people affected.
132. We acknowledge the wider context in which the Council is operating, including:
• significant increases in the number of DoLS requests over several years;
• the effect of COVID-19 on resources and practicalities of dealing with DoLS requests; and
• widespread acknowledgement, including by the Government, that many councils have been struggling to process requests on time. This has recently led to a change in the law aimed at streamlining the deprivation of liberty process.
133. However, there was no ‘easement’ or relaxation of this timescale during the pandemic, nor had any changes in the law taken effect. We consider the widespread delay in processing DoLS requests to be a service failure, because the Council failed to comply with law and guidance in force at the time. 255 of the 588 people affected died before the Council had issued a decision on whether it was lawful to deprive them of their liberty. Mrs M was one of them.
134. We do not criticise the approach of prioritising applications as suggested by ADASS and endorsed by the Government. We also recognise the effort the Council is making to reduce its backlog. But it is not acceptable that more than a quarter of DoLS requests made between February and October 2020, relating to 169 vulnerable people, were still outstanding by August 2021.
135. Mrs M suffered an injustice because she lost her right to the DoLS checks and safeguards required by law to ensure her Article 5 rights were protected. We cannot now remedy this injustice to her, as she has died. Mrs M’s daughters have also suffered an injustice because of the distress of finding out that their mother had been deprived of her liberty without authorisation.
136. We have recommended remedies for the complainants and service improvements at the end of this statement.

F – Complaint handling

Relevant law, guidance and policy

137. Under The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 (the ‘Complaints Regulations’), Councils, care providers and NHS organisations have a duty to investigate complaints properly and in a way that will resolve them efficiently. There is also a duty to cooperate when a complaint is made to one organisation and contains material relevant to the other.
138. The Home’s policy is to respond to complaints within 28 days. The Council’s policy is to respond within 20 working days. The Council’s policy also states that it will not consider complaints that are already with the Ombudsmen.

What happened

139. Ms F complained to the Home in September 2020 about problems in contacting her mother, not being notified of the change in her mother’s condition, and the Home’s claim that she had recorded a video call. The Home replied in the same month and did not uphold the complaint.
140. Ms K complained to the Care Provider on 14 November 2020 because she had not had a satisfactory explanation from the Home about her question as to why a video call scheduled to take place in the morning of 9 November did not happen.
141. Ms D complained to the Home on 20 November 2020. In summary, her complaint was that staff at the Home knew that Mrs M was in the last hours or days of her life but did not inform the family properly, or ensure they were able to visit her before she died. Ms K complained again in similar terms to her sister on
     22 November. The Care Provider acknowledged the complaints and suggested it investigate both complaints as one. Ms K said she would prefer for her complaint to be dealt with individually.
142. Ms D complained to the Care Provider again on 24 December 2020. This complaint was about a grievance the Home had raised following conversations with Ms D and her daughter in August 2020. The Care Provider replied on
     31 January 2021. It did not uphold this complaint and signposted Ms D to us.
143. Ms K wrote to the Care Provider on 31 December 2020 regarding its delay in responding to her complaints of November 2020. She also asked for copies of some of Mrs M's care records and raised concerns about some of the records she had already seen, including those about repositioning and social activities.
144. Ms F complained to the Home on 3 January 2021. In summary, her complaint was about staff misconduct towards Ms F and poor care of Mrs M. The Home replied on 2 February 2021. Its response said (in summary):
• it had reviewed records and interviewed staff;
• the information it had considered did not support most of Ms F’s complaints; and
• the Home should have supported Mrs M after another resident entered her room twice in October 2020.
145. On 8 January 2021, the Care Provider replied to Ms K’s complaints of November-December 2020. Ms K told the Care Provider she was dissatisfied with this response. The Care Provider wrote to Ms K again on 30 January 2021, with further responses to some of her concerns raised after she had seen some of
     Mrs M’s care records. The response did not answer Ms K’s question about when Mrs M started to be nursed in bed. It also said Mrs M had no pressure sores throughout the time she was nursed in bed. The Care Provider referred
     Ms K to us.
146. Ms D wrote to the Care Provider on 11 January 2021. She was dissatisfied that the Care Provider produced an identical report to address both her and her sister’s concerns.
147. Ms D and Ms K complained to the Ombudsmen in April 2021.
148. Ms K complained to the Council on 19 May 2021. The Council received copies of the Home’s complaint correspondence with Ms K the following day. Ms K provided supporting information between 28 May and 4 June.
149. On 9 June 2021 the Council wrote to Ms K saying it considered that it would be unlikely to reach a significantly different conclusion to those already provided through the safeguarding process and the Care Provider’s complaint investigation. The Council therefore referred Ms K to us.

Was there fault causing injustice in complaint handling?

150. There was no fault in the Home’s and Care Provider’s handling of:
• Ms F’s complaints of September 2020 and January 2021; and
• Ms D’s complaint of December 2020.
151. There was some delay in the Home’s and Care Provider’s responses to Ms K’s and Ms D’s complaints of November and December. However, the Care Provider apologised for the delay, and we consider this to be an appropriate remedy.
152. Ms K and Ms D indicated they wanted separate responses to their complaints. The Care Provider was entitled to send the same response to those of Ms K’s and Ms D’s complaints it considered similar, in the interests of efficiency.
153. The complainants were dissatisfied with the content and accuracy of the Home’s and Care Provider’s responses to their various complaints. It is unclear how the Care Provider concluded that Mrs M did not have pressure sores throughout the time she was nursed in bed, when it did not have a clear record of when the Home started to nurse her in bed. I do not consider the remaining content of the Home’s and Care Provider’s responses amounts to fault. This is because the responses indicate the Home and Care Provider considered relevant evidence and reached conclusions based on that evidence. They were conclusions the Home and Care Provider were entitled to reach, even if the complainants disagreed with them. Further, the complainants then had recourse to the Ombudsmen for an independent consideration of their complaints.
154. There was no fault in the Council’s complaint handling. It responded to Ms K within 20 working days, and its response was in line with Regulations and its own policy.

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Agreed actions

155. Where someone has died, we will not normally seek a remedy for injustice caused to that person in the same way as we might for someone who is still living. We would not expect a public or private body to make a payment to someone’s estate. This is because the deceased person cannot benefit from such a payment. However, if we consider the person who has complained to us has been adversely affected by seeing the impact of that fault on their relative, we may recommend a symbolic payment to them as a remedy for their own distress. We have therefore recommended remedies for Mrs M’s daughters, but not for Mrs M.
156. The problems identified in sections A-E above caused the complainants avoidable distress due to uncertainty, a likely impact on in-person visiting, feelings of being treated unfairly, delays in getting information about safeguarding, and finding out Mrs M had been deprived of her liberty without the correct process. In recognition of this, we recommended the complainants receive symbolic payments of £300 each, the amount to be split equally between the Council and Home (each complainant receives £150 from the Council and £150 from the Home). The Council and Home have agreed to implement this recommendation. They should do so within two months of the date of our decision.
157. The Council will, within three months of the date of our final decision, produce an action plan for how it is going to deal with incoming DoLS requests and the backlog of outstanding DoLS requests. The action plan should include a mechanism for addressing those cases where:
• the request is eventually not approved; and
• an unlawful deprivation of liberty has had a potentially harmful effect on that person.
158. The Council has committed to review the action plan when the Liberty Protection Safeguards, introduced by the Mental Capacity (Amendment) Act 2019 take effect.

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Final decision

159. Ms D, Ms K and Ms F complained about faults in connection with the care of their late mother, Mrs M. We have upheld their complaints about care planning and delivery, record keeping, contact management, communication, the administration of Deprivation of Liberty Safeguards (DoLS) and the Council’s safeguarding enquiry. The Council and Home have accepted our recommendations. We have now completed our investigation.

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Investigator's decision on behalf of the Ombudsman