Summary: Miss X complains the Council’s blanket ban on care home residents visiting people outside a care home when there were cases of COVID-19 in the care home prevented her father from visiting her on a number of occasions since September 2021. Based on the evidence seen so far, the Council was at fault for failing to acknowledge Government guidance was open to interpretation and it had chosen to interpret in a particular way. However, this did not cause injustice to Miss X or her father, as they knew there was no legal power to stop him from leaving the care home.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains the Council’s blanket ban on care home residents visiting people outside a care home when there were cases of COVID-19 in the care home prevented her father, Mr Y, from visiting her on a number of occasions since September 2021. Miss X has confirmed that her complaint is about the Council’s advice and not about the care home’s actions in implementing its advice.

Back to top

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 followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

Back to top

How I considered this complaint

5. I have:
• considered the complaint and the documents provided by Miss X;
• discussed the complaint with Miss X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Miss X and the Council, for me to consider before making my final decision.

Back to top

What I found

What happened

6. Mr Y lives in a care home. He has the mental capacity to make decisions for himself.
7. On 10 September 2021 Miss X complained to the Council that the care home had prevented her from taking her father to her home for a visit. This was because there were two cases of COVID-19 in the care home. She noted care workers could leave the care home and visit their families provided they had no symptoms of COVID-19, in which case they had to isolate. She questioned whether this breeched Article 14 of the Human Rights Act (prohibition of discrimination). She said any restriction must be no greater than was necessary to achieve the objective, in this case to reduce the spread of COVID-19. She said she had asked the Council’s infection control team for the risk assessment which justified detaining residents but had received no response (she had exchanged emails with the infection control team but was not happy with the response). She said the Council should take legal advice to see whether what it was doing was legal and, if so, she said she wanted to see the justification.
8. The Council held a meeting to discuss Miss X’s concerns. The record of the meeting says limiting movement in and out of care homes as much as possible was Government policy. It says this made it clear that visiting and trips out of care homes during outbreaks of COVID-19 should only happen in limited circumstances, such as attending medical appointments.
9. When the Council replied to Miss X on 21 September, it referred to Government guidance (see paragraphs 24 and 25 below). It said it had considered whether there was any flexibility within the national guidelines which it was required to follow when there was an outbreak of COVID-19 in a care home. It reminded Miss X she could be designated as an essential carer for her father, which meant she would be able to visit him in the care home during the outbreak. In addition, it said she could visit her father in a pod in the grounds of the care home or at a window.
10. Miss X told the Council it had not answered her specific questions. She noted the Government guidance said visits outside care homes should be restricted as much as possible, but did not prohibit them. She asked whether a resident could leave a care home or not. She said the policy to prevent a resident from leaving a care home was not lawful if it was not based on legislation and asked what that might be. Otherwise, she said Article 14 of the Human Rights Act had to be followed. She said there was no greater risk to the general public from an elderly resident leaving a care home than from a 29-year-old able bodied person.
11. When the Council replied, it said central Government had made the policy, so it could not answer questions about its legality. It said the Director of Public Health’s role was to lead efforts to suppress and manage outbreaks, which included directing care homes to close. It said the current restrictions restricted movement outside the care home to prevent further spread of COVID-19 and to protect all residents and staff as far as possible.
12. Miss X accused the Council of avoiding responsibility, when it was very much a Council decision. She pointed out that the Government guidance said visits should be “minimised as far as possible”, not “prevented”. She said the Council had decided to interpret the guidance in that way.
13. When the Council replied, having first consulted its legal department, it said:
• this element of Government policy had not been tested in the courts;
• however, the Joint Committee on Human Rights had raised the issue of visiting restrictions in July 2021. The Government responded by saying rights under Article 8 (family life) and Article 5 (liberty and security) had to be balanced against the right to life (Article 2);
• any claim of indirect discrimination (between the residents and the care home workforce) under the Equality Act could be justified by showing it was proportionate to achieving a legitimate aim (ensuring health and safety of the workplace and residents); and
• any challenge to national policy should be directed to a Government Minister or an MP.
14. Miss X responded by saying:
• the Council had not addressed her concerns about Article 14;
• the Council had no legal power to prevent her from taking her father out of the care home;
• she would take her father out twice a week, provided he wanted to and tested negative for COVID-19, even if there was an outbreak of COVID-19 in the care home; and
• they would take all sensible measures to reduce the spread of COVID-19, the same measures asked of the general public and care workers, including regular tests and isolating in his room on return.
15. The Council says Miss X:
• “was able to take her father from the care home as she wished as he is deemed as having capacity and therefore could not be held against his wishes. All risks were explained to both [Mr Y] and his daughter about the risk for himself and also for others. Appropriate isolation was in place on return from visits with daily LFD [lateral flow device] testing. This was also discussed with [Mr Y] and his daughter”.
16. Miss X says the care home has allowed her to take her father out when there have been cases of COVID-19. An example of this was in January 2022. The care home did risk assessments which required Mr Y to isolate following a “high risk visit out of the Home”.

Legal and administrative background

17. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
18. Not all rights operate in the same way. Instead, they break down into three separate categories:
• Absolute rights: those which cannot be taken away under any circumstances.
• Limited rights: those that can be taken away in certain circumstances; and
• Qualified rights: those rights where interference may be justified to protect the rights of others or wider public interest. Note that any interference with a qualified right must be in accordance with the law; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.
19. 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.
20. In practical terms, councils 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.
21. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
22. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
23. The ‘protected characteristics’ referred to in the Act are:

• age,
• disability,
• gender reassignment,
• marriage and civil partnership,
• pregnancy and maternity,
• race,
• religion or belief,
• sex, and
• sexual orientation.
   

24. The Government’s 23 August 2021 Guidance on care home visiting said:
• “In the event of an outbreak in a care home, the home should immediately stop visiting (except in exceptional circumstances such as end of life) to protect vulnerable residents, staff and visitors. Essential care givers can continue to visit, but not if the essential care giver or resident are COVID-positive.”
25. The Government’s 23 August 2021 guidance on Visits out of care homes said:
• “In the event of an outbreak, all movements out of a setting should be minimised as far as possible. These restrictions should continue until the outbreak is confirmed as over, which will be at least 14 days after the last laboratory confirmed or clinically suspected cases were identified in a resident or member of staff in the home.”
26. However, the guidance left individual decisions to care providers. It also said:
• “Where applicable, attention should also be given to any additional local guidance provided by the local director of public health (DPH) and director of adult social services (DASS)”.

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

27. The Government guidance was not statutory guidance, as it did not relate to the implementation of a specific piece of legislation. The guidance did not explain what it meant to minimise movements out of care homes during an outbreak of COVID-19. This was left open to interpretation. Contrary to what the Council has suggested, it did not say such movements should be limited to medical appointments or only under exceptional circumstances. However, it was open to the Council to interpret the guidance in that way. The Council says it did this on the basis of advice from Public Health England (which wrote the guidance for the Government). The Council has consistently said it was doing nothing more than implementing Government guidance, but in doing so it has failed to acknowledge the guidance was open to interpretation and it had chosen to interpret it in a particular way. While the Council is not accountable for Government guidance, it is accountable for the way in which it interprets such guidance. The failure to acknowledge this was fault by the Council.
28. However, it is clear (see paragraph 14 above) Miss X knew there was nothing to legally prevent her from taking her father out of the care home. Since at least January 2022, Mr Y has exercised his right to leave the care home to spend time with his family. This does not support the claim that Mr Y or Miss X have suffered injustice through fault by the Council.
29. The evidence shows the Council has considered the legal implications of the position it has taken on the Government guidance. While it has not specifically addressed Miss X’s concerns relating to Article 14, it has addressed her concerns about discrimination with reference to the Equality Act.

Back to top

Final decision

30. I have completed my investigation on the basis there has been fault by the Council but this has not caused injustice which requires a remedy.

Back to top

Investigator's decision on behalf of the Ombudsman