Summary: Mrs X complains the Council’s care provider, The Firs Residential Home, failed to look after her late mother (Mrs Y) properly, resulting in her catching COVID-19 from which she died, and failed to tell her family how ill she was. The Home’s failure to properly look after Mrs Y put her at risk of harm. The Council needs to apologise and pay financial redress.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council’s care provider, The Firs Residential Home (“the Home”), failed to look after her late mother properly, resulting in her catching COVID-19 from which she died, and failed to tell her family how ill she was.

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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 the Council and care provider 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 Mrs X;
• discussed the complaint with Mrs X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s published guidance on remedies when deciding on my recommendations; and
• shared a draft of this statement with Mrs X and the Council, and invited comments for me to consider before making my final decision.

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What I found

7. The Government’s guidance on Admission and care of residents in a care home during COVID-19, updated on 4 November 2020, said:
• “If symptoms worsen during isolation or are no better after 7 days, contact NHS 111 or the named clinician for the care home to receive further advice around escalation and to ensure appropriate clinical care and person-centred decision making is followed. For a medical emergency dial 999.”
8. 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. Regulation 17 requires care providers to maintain an accurate, complete and contemporaneous record of the care provided for each service user.

What happened

9. Mrs X’s mother, Mrs Y initially funded her own placement at The Home. The Council started funding the placement in June 2020. Mrs Y had dementia and other aged related medical conditions. She needed help with mobility and had a level five (minced and moist) diet due to swallowing difficulties. She could not communicate verbally but could sometimes communicate by nodding or using facial expressions.
10. On 23 November the Home wrote to the families of residents to let them know a resident had tested positive for COVID-19 in hospital on 22 November. It said all residents’ temperatures were within the normal range and it had tested all staff and residents for COVID-19. It said it would follow Government guidelines aimed at keeping residents safe.
11. The Home kept records of the care provided for Mrs Y. I summarise the key contents of the records from 23 November to 22 December 2020, when Mrs Y died. The records show staff checked on Mrs Y regularly during the day and night, repositioning her when in bed to promote skin integrity and using a standing aid when sat in a chair.
• 23 November – The Home noted the need to keep monitoring for signs/symptoms of COVID-19 and to take Mrs Y’s temperature every day. Her temperature was 36.9 C. Mrs Y spent the day in a chair in her room;
• 24 November – Mrs Y spent the day in the lounge;
• 25 November – Mrs Y had a temperature of 38 C and tested positive for COVID-19. She spent the day in a chair in her room;
• 26 November – Mrs Y sat in a chair in her room in the morning but went back to bed early in the afternoon. The Home noted the need to keep monitoring for signs/symptoms of COVID-19, despite the fact she had already tested positive, and to take Mrs Y’s temperature (her temperature was 37 C). The Home noted Mrs Y was “fine”;
• 27 November – Mrs Y spent some of the day in a chair in her room. By 17.15 she was in bed. She was “a bit better today”. Her temperature was 37.3 C;
• 28 November – in the morning Mrs Y was agitated for 15 minutes. She spent the day in bed and was “a bit better today”;
• 29 November – Mrs Y sat in a chair in her room and was helped to stand regularly. She was “the same today”;
• 30 November – Mrs Y had a bath but spent the day in bed, eating little until teatime;
• 1 December – Mrs Y spent the day in bed, although someone recorded helping her stand from her chair at 16.01. She ate more of her food but was “the same today”;
• 2 December – Mrs Y spent the day in bed, although some of the records refer to helping Mrs Y stand from her chair. She ate little;
• 3 December – Mrs Y spent the day in bed and ate little;
• 4 December – Mrs Y spent the day in bed. She ate most of her food;
• 5 December – Mrs Y spent the day in bed. She ate little at breakfast, none of her lunch apart from desert;
• 6 December – Mrs Y remained in bed and ate little, although there are contradictory reports of what she ate at teatime. She was “a bit better today … ate and drank ok, no problems”;
• 7 December – Mrs Y remained in bed, although staff frequently recorded helping her up from her chair. She ate little but drank fairly well;
• 8 December – Mrs Y remained in bed. She drank fairly well but ate very little;
• 9 December – Mrs Y remained in bed. She ate little at breakfast or lunch but later was recorded as "appears brighter today" and “not eaten too bad”. The Home updated Mrs Y choking care plan to provide for a level four pureed diet, rather than a level 5 soft and bite-sized diet;
• 10 December – Mrs Y remained in bed. Breakfast is not mentioned. She ate most of her lunch and a little at teatime. She “appears brighter today”;
• 11 December – Mrs Y remained in bed. Breakfast is not mentioned. She ate most of her lunch but very little at teatime. A relative called. Mrs Y “seems bright enough”;
• 12 December – Mrs Y remained in bed. Breakfast is not mentioned. She ate all of her lunch and most of her teatime meal. She was “a bit better today”;
• 13 December – Mrs Y had breakfast in the lounge and ate all her food. She remained in the lounge and ate most of her lunch. There is no mention of a teatime meal. She went to bed in the early evening. She was “a bit better today”;
• 14 December – Mrs Y was not drinking regularly and did not want a bath. She had breakfast in the lounge and ate a little. She ate most of her lunch but very little at teatime;
• 15 December – Mrs Y ate all her breakfast in the lounge. She ate little at lunchtime but most of her teatime meal. She had been “better today” and “ate and drank ok”;
• 16 December – Mrs Y ate all her breakfast sat in a chair in her room. She had lunch in the lounge and ate it all. She weighed 51 kg. She ate most of her teatime meal. She had been “better today”;
• 17 December – Mrs Y had a little breakfast in the lounge. She ate a little lunch. The Home spoke to a GP about Mrs Y’s weight loss, who prescribed fortified drinks to be taken twice a day. Mrs Y ate a little at teatime. She was “much the same today”;
• 18 December – Mrs Y sat in her wheelchair. There is no mention of breakfast. She had lunch in the lounge and ate little. She ate nothing at teatime. She weighed 47.5 kg. She was “sleepy today”;
• 19 December – there is no mention of breakfast. Mrs Y ate most of her lunch in the lounge and a little of her tea. She was “sleepy” again;
• 20 December – There is no mention of breakfast. Mrs Y drank 30 ml of a 200 ml fortified drink. She was in the lounge at lunchtime but ate nothing. By teatime she was in her bedroom, due to being sleepy, but again ate nothing. She was “not very well”;
• 21 December – Mrs Y ate all her breakfast in the lounge. She drank 60 ml of a 280 ml fortified drink. The Home also started giving Mrs Y thickened drinks (tea and fruit juice). She ate little at lunchtime. Mrs Y was holding food in her mouth. Speech and Language Therapy recommended giving Mrs Y a level four pureed diet until she felt better, or it would assess her. Mrs Y deteriorated as the day progressed. She had several bouts of diarrhoea;
• 22 December – Mrs Y died in the early hours. The Home told Mrs X’s sister.
12. Although there is no mention of this in its records, around 18.00 on 21 December, The Home called Mrs Y’s family to say she was very unwell and they needed to visit. Mrs X went to see her mother, who was unconscious when she arrived. She says her mother was having difficulty breathing and she could hear that there was fluid on her chest.
13. In January 2021, the Care Quality Commission (CQC) published the results of a targeted inspection of The Home, which it had started on 27 November 2020. CQC identified breaches in relation to infection control which put people at risk of harm. These included:
• the failure to use personal protective equipment properly;
• not always disposing or storing clinical waste properly;
• not enough staff to ensure enhanced cleaning, including nine occasions between 14 November and 13 December 2020 when no domestic staff were on duty, which meant “no cleaning or infection control measures were taken to prevent the spread of infection”.
14. The Home’ rating remained inadequate (as it had been since November 2019) and it remained in “special measures”.
15. When CQC did a full inspection of The Home in January 2021, overall it found it required improvement, specifically in relation to being safe and well-led but was good in relation to being effective, caring and responsive. With regard to infection prevention and control, CQC was:
• assured over visitors, admission and testing;
• somewhat assured over policies; and
• not assured over shielding, use of PPE, premises or staffing.
16. Mrs X complained in February about The Home’s care of her mother. She said:
• staff had not been forthcoming about the fact her mother had a temperature when she called on 26 November;
• staff did not know what Mrs Y’s temperature was when she called on 27 November;
• The Home said it was keeping Mrs Y in bed “for her own safety” between 3 and 12 December, and only got her out of bed on 13 December when they raised concerns about inactivity potentially exacerbating the illness;
• when she called on 5 December another resident answered the telephone;
• they received no further communication about the outbreak of COVID-19 after the letter of 23 November, nor did they receive a letter of condolence;
• CQC’s January 2021 report identified inadequate cleaning and infection control, and a lack of management oversight;
• Mrs Y was at risk and died because infection control was not managed effectively;
• Buckland Care should return the £36,347.83 Mrs Y had paid for her care since August 2019, when CQC decided The Home was inadequate, given that it had provided inadequate care since then.
17. When Buckland Care, which runs The Home, replied to Mrs X’s complaint in March 2021, it said:
• the restrictions in place during the outbreak of COVID-19 reflected Government guidance;
• Mrs Y’s care plan contained information for staff about communicating with her;
• staff had told Mrs X when her mother had a temperature;
• during the outbreak of COVID-19 Mrs Y had been cared for in her room, where staff interacted with her many times each day;
• it apologised if staff did not have Mrs Y’s temperature available when Mrs X called on 27 November;
• a resident had taken Mrs X’s call on 5 December as residents sometimes used the cordless phones to communicate with relatives but apologised for this;
• it apologised for not sending a letter of condolence;
• the lack of cleaning identified by CQC mostly reflected a lack of record keeping at weekends when Care Workers did the cleaning rather than domestic staff;,
• it disputed the claim Mrs Y caught COVID-19 because of poor infection control, as she would have contracted it sometime in the 10 days before her positive test result when there were no infection, prevention and control issues;
• CQC could not change the overall rating of inadequate as it had not done a full inspection in November 2020, but had since done one and removed the inadequate rating, having found no regulatory breaches;
• it would not refund £36,347.83 Mrs Y had paid in care fees, as it had met her needs for food, accommodation, staffing, personal care, entertainment etc.
18. Buckland Care said it had increased management oversight of The Home, by visiting more than once a month. It also said it had met all the conditions placed on it by CQC.

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

19. The Home rarely recorded Mrs Y’s temperature, despite identifying the need to do this every day. Many of its records are formulaic and are not person centred. The records include many contradictions and gaps, including:
• saying Mrs Y “ate and drank ok” on 6 December when she ate very little;
• claiming to have helped Mrs Y stand from a chair when she was in bed;
• no specific references to Mrs Y’s COVID-19 symptoms and whether they were improving or getting worse;
• no records of some meals being offered to Mrs Y.
20. This is a potential breach of Regulation 17 (see paragraph 8 above).
21. Although Mrs Y remained in isolation for 14 days, there is no evidence of the Home seeking medical advice, which is contrary to the Government guidance (see paragraph 7 above). There is also nothing to explain why the Home stopped isolating Mrs Y on 13 December.
22. There are only two references to contact with Mrs Y’s family, although Mrs X says they contacted the Home most days. Our guidance on Good Administrative Practice during the response to COVID-19 emphasises the importance of basic record keeping during crisis working. The Home failed in this regard.
23. Buckland Care was wrong to say Mrs Y contracted COVID-19 when there were no problems with infection control. CQC identified such problems going back to 14 November, 11 days before Mrs Y received a positive test result. Buckland Care also suggested the problems CQC identified were down to a lack of recording, rather than a failure to clean the Home properly. That did not reflect CQC’s findings which were about actual failures in infection control, rather than just in recording actions to control infection.
24. These failings are faults for which the Council is accountable (see paragraph 6 above). It is not possible for me to say whether or not Mrs Y would have caught COVID-19, where it not for the faults identified. However, there can be no doubt that these faults increased the risk to Mrs Y. It is no longer possible to remedy the injustice to Mrs Y because she has died. However, the faults I have identified caused avoidable distress to Mrs X, arising from the fact more could have been done to protect her mother.

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Agreed action

25. 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 I found fault with the actions of Buckland Care and the Home, I have made recommendations to the Council.
26. I recommended the Council:
• within four weeks writes to Mrs X apologising for the failings I have identified and pays her £500 as a symbolic payment for the distress caused to her; and
• within eight weeks, work with the Home to produce an action plan for improving record keeping and ensuring staff seek timely medical advice.

The Council has agreed to do this.

27. Under the terms of our Memorandum of Understanding and information sharing protocol with CQC, I will send it a copy of my final decision statement.

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Final decision

28. I have completed my investigation on the basis that there have been faults causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman