Summary: Ms D complains on her own behalf and on behalf of her late mother, Mrs J, about the care provided to Mrs J while she was resident in an extra care housing placement during the first COVID-19 lockdown. We have found no fault in the care provided to Mrs J though the record keeping is not complete. There was fault in complaint handling which caused Ms D time and trouble. The Council will apologise for this and review its complaint handling arrangements.

The complaint

1. Ms D complains on her own behalf and on behalf of her late mother, Mrs J, about the care provided to Mrs J while she was resident in an extra care housing placement, arranged and part-funded by the Council, from November 2019 to April 2020. Ms D says the care provider failed to provide Mrs J with appropriate care and support.
2. Ms D says as a result her mother was not properly safeguarded and subsequently developed COVID-19 and died. Ms D says she had to provide her mother’s care and the situation was extremely distressing.
3. Ms D also complains that there was an unacceptable delay arranging an advocate to support her in the complaints process, causing her time and trouble.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
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)
6. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
7. 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, section 30(1B) and 34H(i), as amended)
8. 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

9. I spoke to Ms D about her complaint and considered the information she sent and the Council’s response to my enquiries.
10. 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 followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
11. Ms D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Care and support needs

12. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.

Complaints about adult social care

13. The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 say councils must make arrangements to ensure that complaints about adult social care services are dealt with efficiently and complainants receive a timely and appropriate response. A single stage procedure should be enough.
14. Where a council has sent details of the complaint to a social care provider, the two bodies must co-operate to ensure that the complainant receives a co-ordinated response to the complaint.

Extra care housing

15. Extra care housing is a scheme that combines accommodation with care and support services. The accommodation is rented and is the occupant’s own home. People’s care and housing are provided under separate contractual agreements.
16. Barnet Homes is a company set up by the Council to manage its housing stock. It provides extra care housing and has its own complaint procedure. Care is provided by Your Choice Barnet, which is another arm of the Council’s company.

Safeguarding Adults

17. The law says a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and if that person has needs for care and support which mean he or she cannot protect himself or herself. The enquiries should determine whether any action needs to be taken to prevent or stop abuse or neglect. (section 42, Care Act 2014)
18. A safeguarding case can be closed at any stage, provided there is an agreement of how issues will be followed up with the adult at risk.

What happened

19. Mrs J was in her 80s and had a mental health condition and health issues which affected her digestion. Mrs J had short term memory loss and could get confused but she had capacity to make decisions. She had arthritis but was mobile, though at risk of falls. She was living alone in a flat with help from her daughter, Ms D, and her grandson.
20. The Council assessed Mrs J’s care and support needs in August 2019. It determined she needed support to live independently, including help with personal and continence care, making meals and administering medication. The assessment found her flat was not suitable and it was recommended she move into extra care housing.
21. Mrs J moved into this accommodation, Ansell Court operated by Barnet Homes, in November 2019. Your Choice Barnet (the care provider)’s support plan said Mrs J would have three visits per day to:
• Support Mrs J to take medication.
• Support her with making meals and encourage her to eat healthily; Ms D would help Mrs J shop.
• Prompt Mrs J to keep her home clean and supervise laundry.
22. The plan also said Mrs J should wear a tracker and tell staff if she went out as she could become confused and get lost.
23. The daily care notes record that on 23 December 2019 there was a disagreement between Ms D and a care worker about Mrs J’s medication administration record (MAR chart), which Ms D said was inaccurate. She amended it. Ms D says she had to clean Mrs J’s flat and make her meals as the care workers refused to do this.
24. On 1 February 2020 Ms D told the care staff not to give Mrs J any medication and that she would do it, as she was concerned it was being given before food. Mrs J’s MAR chart said many of her medicines were to be given with food. Ms D raised her concerns with the care provider. Tensions developed between Ms D and the care staff, as they were required to administer the medication.
25. There was a meeting with Mrs J and Ms D on 28 February 2020 which Mrs J’s psychologist and the Council also attended. Ms D says the meeting had been arranged to discuss support for Mrs J whilst she was abroad. Ms D highlighted her concerns about the medication, Mrs J going out alone as she had recently got lost and that she was staying in bed too much. Ms D says the psychologist “imposed new rules” that Ms D would not administer medication or visit Mrs J after 8pm. It was agreed that Mrs J would let staff know if she was going out and the Council would ask for funding to support her to go shopping. It was noted that Mrs J could make her own decisions and could not be forced to take part in activities. The psychologist encouraged Ms D to enable Mrs J to be more independent and have a regular sleep pattern.
26. Following the meeting, Ms D took Mrs J to the GP who wrote a letter to say that Mrs J should not go out unescorted as she got confused. It also said a doctor’s letter was not necessary for staff to give vitamins to Mrs J. That evening, Ms D told care staff not to administer medication as Mrs J had not eaten and did not want it. She took the medication from Mrs J and a care worker said she would call the police as Ms D was not allowing Mrs J to take her medication.
27. Ms D left the UK from 3 to 26 March. On her return she had to self-isolate for two weeks due to the COVID-19 rules. Whilst she was away, Mrs J’s grandson supported her. On one occasion he was not allowed in as the care provider had said there should be essential visitors only due to the COVID-19 lockdown from 20 March 2020. The care provider apologised for this at the time.
28. The care notes record Mrs J leaving her flat four times, on 8, 23, 25, and 29 March, including two visits to the communal lounge. Mrs J’s grandson raised concerns that Mrs J was being allowed out, despite the lockdown rules. There are also falls recorded on 29 March, 2 and 5 April and episodes of incontinence on 2, 3 and 4 April.
29. In the early hours of 4 April, staff entered Mrs J’s flat as there was water in the flat below. They found a tap was running and a member of staff videoed the incident on their phone to show the maintenance staff. Ms D disputes this. She says it was not possible for the sink to overflow as they were adapted for people with dementia, there was no sign of water damage and there had been no leak. Ms D is concerned that staff woke Mrs J, possibly affecting her health.
30. On 6 April staff found that Mrs J was ill and she had been incontinent. They called 111. Paramedics came and took Mrs J to hospital. Ms D says that her son was required to clean up the bedding and floor. The care provider says he offered to do so as care staff were helping Mrs J get cleaned up to go to hospital.
31. Mrs J sadly passed away in hospital on 16 April, having tested positive for COVID-19.

Ms D’s complaint

32. Ms D raised concerns with the Council on 20 April about Mrs J’s care whilst she was in Ansell Court. She said Mrs J had not been kept safe, care staff had not worn personal protective equipment (PPE) and she had therefore contracted COVID-19. Mrs D also said the care provider:
• had not provided personal care or applied creams, had not dealt with soiled bedding and had left Mrs J in soiled pads;
• had not visited for the full amount of time;
• had not supported Mrs J when she went out or encouraged her to wear a tracker;
• had been aggressive towards Ms D in relation to the medication incident;
• had falsely accused Mrs J of leaving a tap running and entered her flat;
• had not allowed her grandson to visit.
33. The Council decided to open a safeguarding investigation as, although Mrs J had died other residents may be at risk. It asked the care provider to investigate.
34. The care provider gave the Council its findings on 27 May 2020 and there was a safeguarding meeting on 2 June to discuss these. The meeting decided the safeguarding allegations were not substantiated. There was evidence Mrs J received personal care and that staff did laundry and cleaning, but also that Mrs J often declined care and asked care staff to leave. It was noted Mrs J was able to go out on her own and that staff had PPE. The care provider acknowledged that the daily care records were not always fully completed.
35. It was agreed that some of the issues Ms D had raised were complaints, rather than safeguarding matters. The Council would advise Ms D of the outcome of the safeguarding investigation and to follow the care provider’s complaint procedure.

July 2020 to August 2021

36. Ms D contacted the care provider on 6 July 2020 as she was unhappy with the outcome of the safeguarding investigation. She asked about its complaint process. The Council offered to meet her to discuss the safeguarding outcome.
37. Ms D says the care provider told her she should have an advocate to help with the complaints process. I have seen no evidence of this but I have seen that on 24 July the Council sent Ms D information about how to seek an advocate if she wished to.
38. Ms D was then ill, so the Council emailed her the minutes of the 2 June meeting and offered to discuss the outcome of the safeguarding investigation with her in September. Ms D later asked to postpone this due to ill health.
39. I have seen no evidence the care provider sent Ms D a response to the complaint.
40. On 9 October Ms D told the Council she was unhappy with the safeguarding outcome and did not wish the safeguarding case to be closed until all her concerns had been addressed.
41. A CQC inspection of Ansell Court then found there had been a breach of one of its standards, as the care provider had not fed back the outcome of its investigation to a complainant.
42. An advocate was allocated to Ms D on 18 November 2020 and in December the advocate told the Council Ms D wished to postpone a discussion about the outcome of the safeguarding investigation until January 2021. The Council officer was then away from work in January.
43. On 24 March 2021 the Council told Ms D it would be closing the safeguarding case on 22 April. Ms D complained to the Ombudsman.
44. The Council sent Ms D the report of the outcome of the safeguarding investigation on 20 August 2021.

My findings

Care and support provided to Mrs J

45. The Council’s care and support assessment said Mrs J needed three visits daily to support her with medication and meal preparation, and one hour a week support with laundry. The care provider created a support plan for Mrs J on 27 November 2019.
46. I have reviewed the daily care records from November 2019 to April 2020. These show that overall Mrs J was provided with appropriate care and support.
47. Care staff prompted Mrs J with her personal care, gave medication and applied creams, prepared meals and drinks, cleaned, and took out rubbish. There are no references to Mrs J being left in soiled pads and I have seen no evidence carers refused to clean up. There is no reference to what PPE was being worn so I can make no finding on this point.
48. Mrs J often refused care, including personal care, and would ask care staff to leave. She did not always want to eat and would often say her family would help her later or that she would do it herself. Care staff would encourage her to accept personal care if she had declined it and sometimes re-visited later.
49. Care staff visited every day, though on at least twenty days the care notes do not record three visits. I cannot be sure if this is missing records, cancellations by Mrs J or Ms D, or if visits were missed. It is fault either to have not recorded the visits or to have not visited, however I can see no evidence this caused injustice to Mrs J as there are no signs her health or care suffered.
50. Although Mrs J did sometimes say she did not feel well, was often tired or did not want to get out bed, there is no sign of significant illness or distress until about 29 March 2020. Mrs J’s health seemed to deteriorate after that as she had more frequent incontinence incidents and falls. However, I have seen no evidence that Mrs J’s health was of such concern that care workers should have called the GP or 111. There was no delay in seeking medical advice on 6 April when care staff found Mrs J to be ill and called 111.
51. The care provider has already apologised to Mrs J’s grandson for the one time of not letting him visit during the COVID-19 lockdown, which is a suitable remedy for the distress caused to him. This incident caused no injustice to Mrs J or Ms D. There is no evidence he was “forced” to clean up by care staff. When Mrs J was being taken to hospital, I would expect the care workers to focus their support on Mrs J.
52. I understand that Ms D disputes that there was a flood in Mrs J’s flat. However, even if there had been no leak, there was no fault by the care provider in entering the flat to check on a possible leak or in videoing the incident to show the maintenance staff. I have seen no evidence the video was inappropriately shared.

Leaving the flat

53. Ms D was concerned that Mrs J was at risk if she left her flat alone and complained that the care provider did not ensure she stayed in, or that she wore her tracker. There are three records of Mrs J leaving the flat after the COVID-19 lockdown started, including two visits to the communal lounge, though Ms D says she went out more than this.
54. I realise Ms D was concerned, but Mrs J had capacity to make her own decisions and her care plan did not say she had to stay in or that she had to be escorted. There was conflicting advice from Mrs J’s GP and psychologist but the care provider had no authority or ability to make Mrs J stay in her flat, even during the COVID-19 lockdown. Staff could only remind her to wear her tracker or not to go out. I do not find fault.

Medication

55. Ms D was concerned that care staff gave Mrs J medication before she had eaten so she started to insist that only she gave it. The records show Mrs J often did not want to eat and that care staff would encourage her to eat whilst they administered the medication, but they could not force her to eat.
56. I cannot say whether Mrs J would have been more at risk having medication without food or not having medication on time. I have seen no records from the GP or other health professional expressing concerns about Mrs J’s medication, nor have I seen any evidence that Mrs J was caused harm by having medication without food. The MAR charts show that medication was given. I therefore do not find any fault.
57. The care provider has accepted that staff should not have said they would call the police and has already apologised for this, which is a sufficient remedy for the injustice caused to Ms D.

Meals and nutrition

58. In response to my draft decision statement, Ms D raised concerns about Mrs J’s nutrition. She said care workers refused to cook or provide meals for Mrs J and that she was effectively starved in the last two weeks she was there.
59. The support plan did not require care workers to cook or prepare meals for Mrs J. Their role was to encourage her to eat healthily and support her with meal preparation.
60. Mrs J had capacity to decide what she wished to eat and the records show she often declined food that was offered. In the last two weeks she ate every day, though mostly cereal, fruit and toast. I have seen no evidence of weight loss or that care staff refused to give her meals. I do not find fault.

The safeguarding investigation

61. The safeguarding allegations were not substantiated. Ms D disagrees with this outcome but having reviewed the records I have seen no evidence which would overturn this finding. Nor have I seen any fault in the way the safeguarding investigation was carried out by the Council. This means I cannot challenge the Council’s decision.
62. The safeguarding investigation was completed by 2 June 2020. There was then a long period where the Council wanted to hold a meeting with Ms D before it closed the safeguarding case, but this was frequently postponed by Ms D due to ill health.
63. I am unclear why an advocate was sought. Ms D says the care provider insisted on it, but I have seen of evidence of that. There was also no requirement on the Council to arrange an advocate for Ms D.
64. Councils must arrange for an independent advocate to support an adult who is the subject of a safeguarding enquiry, where the adult has 'substantial difficulty' in being involved in the process and where there is no other suitable person to represent and support them. But this did not apply to Ms D, as it was Mrs J who was the subject of the safeguarding enquiry and, in any case, there is no evidence Ms D had substantial difficultly in being involved.
65. Nonetheless, an advocate was being sought in August 2020 but not allocated until November 2020. Whilst I can see this caused delay, as it was Ms D’s choice to have an advocate this was not caused by fault by the Council.
66. The Council’s safeguarding procedures say a safeguarding case can be closed at any time “with agreement on how matters will be followed up with the adult at risk”. This means the Council did not need to wait until it had held a meeting with Ms D before it closed the case, as Ms D was not the adult at risk. Although the Council may have decided to treat her as such as Mrs J had died.
67. I find there was delay in closing the safeguarding case and that it could have been closed by July 2020. This did not cause any injustice to Ms D, though, as she was aware of the outcome by 6 July 2020.

Complaint handling

68. At the safeguarding meeting on 2 June 2020, it was agreed that some of the concerns would be dealt with by the care provider as complaints. I have seen no evidence the care provider responded to Ms D about these.
69. Although the care provider had its own complaint procedures, the 2009 Regulations say the Council must cooperate with the care provider to ensure a response is sent and that it is for the Council to ensure adult social care complaints are dealt with effectively. In addition, the Council had responsibility for the care provided to Mrs J and for the actions of the organisation providing it. Therefore any failure in complaint handling is fault by the Council.
70. I find the fault in complaint handling has caused time and trouble to Ms D, as she had to come to the Ombudsman to pursue the complaint and was not able to do so for almost a year.

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Agreed action

71. Within a month of my final decision, the Council has agreed to apologise to Ms D for the fault in complaint handling which has caused her time and trouble.
72. Within three months of my final decision, the Council has agreed to review the framework contract it has with Your Choice Barnet to ensure complaint handling arrangements are included and there are ways to performance manage complaint handling.

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Final decision

73. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman