Summary: There was fault by the Council which commissioned the late Mrs Y’s care in a care home. The fault included failings in nutritional care and in infection control measures during an outbreak of COVID-19. There were also serious failings in complaint handling. To put matters right, the Council will apologise, make Mrs X a symbolic payment, carry out a quality monitoring visit and review its complaint handling procedures.

The complaint

1. Mrs X complained about her late mother Mrs Y’s care in Eccleston Court Nursing Home (the Care Home). St Helens Metropolitan Borough Council (the Council) arranged and funded Mrs Y’s care. Mrs X complained about:
1. Inadequate COVID-19 precautions
2. Mrs Y’s food and fluid intake
3. Inadequate complaint handling by the Council.
2. Mrs Y said the failings caused her and the family avoidable distress and time and trouble complaining repeatedly.

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The Ombudsman’s role and powers

3. The law says a council should be given a reasonable opportunity to respond to a complaint before we investigate. (Local Government Act 1974, section 26(5))
4. 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)
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. 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)
7. This complaint involves events during the Covid-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether councils and care providers followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19.” While we anticipate a temporary impact on the capacity for councils to deal with complaints, we still expect them to deal effectively with the most serious issues.

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How I considered this complaint

8. I considered:
• The complaint to us and the Care Home’s investigation report
• Complaint correspondence
• Food and fluid records from the Care Home
9. A colleague discussed the complaint with Mrs X.
10. Ms X 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

11. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) issued guidance in March 2015 on meeting the regulations (the Fundamental Standards.) The Ombudsman considers the 2014 Regulations and the Fundamental Standards when determining complaints about poor standards of care.
12. Regulation 12 of the 2014 Regulations says care must be provided in a safe way including assessing risks to the safety of people using the service and doing all that is reasonably practicable to mitigate risks.
13. Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences. Care providers should carry out an assessment of needs and preferences and design a care plan to meet needs and preferences.
14. Regulation 14 of the 2014 Regulations says the nutrition and hydration needs of residents must be met. They must receive suitable nutritious food and fluid to sustain life and good health, with support to eat and drink if needed

Key facts

15. Mrs Y lived in the Care Home from May 2019. She died in April 2020 from COVID-19.
16. Mrs Y complained to the Council in April 2020. It commissioned an independent investigator to report on Mrs Y’s complaints. Progress was slow to non-existent and the Council’s complaint records indicated Mrs Y had to chase up the Council’s complaints team for updates. The independent investigator became ill and resigned. Mrs Y then complained to us in April 2021. We decided the Council had not had a reasonable opportunity to respond and asked it to respond. The Council appointed a second independent investigator in May 2021. By the middle of June 2021, there was still no complaint response from the Council and so we decided to start an investigation.
17. The Care Provider had already completed an internal investigation into Mrs X’s complaints. I have summarised its key findings below:
• PPE was being used incorrectly including during the outbreak of COVID-19 in the unit where Mrs Y lived. This was not an isolated incident, masks were being worn under the chin (that is, not at all) and staff were not always wearing PPE in communal areas
• Apparent dishonesty by staff, including the unit lead who claimed they had been using PPE properly despite photo and video evidence to the contrary
• Infection control issues when staff crossed between sites
• The site where Mrs Y lived was under-staffed
• Subjecting Mrs Y to a COVID-19 test when she was at the end of her life was not appropriate
• Offering Mrs Y orange juice when she did not like this. The family should not have had to provide other drinks. There was a lack of choice of drinks
• Some days Mrs Y’s fluid intake was low and this fluctuated and may have been because of increasing frailty
• A note said the family had spoken to the GP in April and the GP was happy with her fluid intake given her size and health
• There was a failure to offer food and drink ‘little and often’ and outside usual meals in line with Mrs Y’s assessed needs
• There was a failure to use the malnutrition assessment tool each month
• Mrs Y’s family had to raise concerns around food and drink frequently, no real sign of any engagement with them as to how this might be supported. One day in April 2020, no food was given between one and eight pm.
18. The Care Provider noted in its investigation that it had:
• A new senior team in place with more experience
• Introduced weekly quality meetings
• Sent letters to staff reminding them to wear PPE correctly and any failings would result in disciplinary action
• Carried out infection control audits
• Put in place new signs
• Introduced contact plans (setting out agreed contact arrangements with family) for all residents
• Shared the details of Mrs X’s complaint with the team and discussed how to minimise the chance of recurrence
19. The Care Provider also noted in its report that it intended to:
• Change its records to note when fluids had been offered and if there were gaps in food intake, it would ensure this was escalated
• Ensure clinical risk meetings were taking place and that these included weight and malnutrition risk assessments records
• Introduce ‘its personal to me’ documents which were more person-centred and involved family
• Encourage staff to have tea breaks with residents and include food and drink in activities.
20. My manager spoke to senior officers responsible for complaint handling at the Council. She was told that:
• There had been a restructure which resulted in the loss of experienced staff
• There had also been staff illness
• It was recruiting temporary staff and had brought in a better system to track and monitor complaints.

Findings

Complaint a: Inadequate COVID-19 precautions

21. The Care Home, acting for the Council was at fault because it did not use PPE properly. This means care to Mrs Y and other residents was not in line with Regulation 12 of the 2014 Regulations. This caused Mrs X and family avoidable distress. We cannot conclude the failure to use PPE properly or to apply other infection control measures caused Mrs Y’s death, but the failings caused avoidable uncertainty about whether or not there would have been a different outcome had PPE been used properly.

Complaint b: Mrs Y’s food and fluid intake

22. The Care Home, which acted for the Council, was at fault. It has already accepted failings in nutritional care including: not reviewing the malnutrition screening at appropriate intervals and not providing tailored individual nutrition and hydration care. Care to Mrs Y was not in line with Regulations 14 and 9 of the 2014 Regulations.

Complaint c: Inadequate complaint handling by the Council.

23. The Council’s complaint handling was woefully inadequate and not in line with our guidance for councils during COVID-19. While we expected some impact on complaint handling during the pandemic, Mrs X’s complaint was a serious one. Yet the Council never provided a complaint response, even after prompting from this office. Communication with the family was poor and led to avoidable frustration, distress and time and trouble chasing the Council up. The Council’s oversight of the independent investigator was also poor. It should have recognised far sooner that there was a problem and taken action to resolve it. This was a further fault.

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Agreed action

24. 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 the care provider and the Council, I have only made recommendations to the Council.
25. Within one month the Council will:
• Apologise to Mrs X for the failings I have identified
• Pay her £500 to reflect her avoidable distress and time and trouble
26. Within two months the Council will:
• Review the use of independent investigators and ensure it has a process to monitor and oversee their progress. For example, the Council may wish to introduce monthly progress updates.
• Conduct a quality monitoring visit to the Care Home to ensure all the agreed and planned actions set out in paragraphs 18 and 19 are taking place
• Provide me with a written report of the quality monitoring visit and the updated procedures to monitor independent complaint investigations.

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Final decision

27. There was fault by the Council which commissioned the late Mrs Y’s care in a care home. The fault included failings in nutritional care and in infection control measures during an outbreak of COVID-19. There were also serious failings in complaint handling. To put matters right, the Council will apologise, make Mrs X a symbolic payment, carry out a quality monitoring visit and review its complaint handling procedures.
28. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman