Summary: Ms X complained the Care Provider refused to award her essential care giver status, lied about her to her siblings, made her carry out her COVID-19 lateral flow tests on site and failed to deal appropriately with her complaints. She says this caused her and her mother distress. There was no fault in the Care Provider’s actions.

The complaint

1. Ms X complained her mother, Mrs M’s, Care Home:
• refused to award her essential care giver status;
• lied about her to her siblings and then colluded with them to block her contact with Mrs M;
• insisted she carry out her COVID-19 lateral flow tests (LFTs) on the Care Home premises; and
• failed to properly follow its complaint policy.
2. Ms X said that as a result, she felt the Care Home manager had waged a vendetta against her which had made her life difficult and caused her distress.

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The Ombudsman’s role and powers

3. 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 care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
4. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. Part 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
5. In this case Mrs M arranged and paid for her own care. Therefore, the complaint is against the care provider.
6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. If we are satisfied with an organisation’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)

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How I considered this complaint

8. I spoke to Ms X and considered her view of her complaint.
9. I made enquiries of the Care Provider and considered the information it provided.
10. I wrote to Ms X and the Care Provider with my draft decision and considered their comments before I made my final decision.

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What I found

Visiting arrangements in care homes

11. On 21 June 2021, the government issued updated guidance to care homes. This stated residents could choose to nominate an essential care giver (ECG). The guidance stated the ECG arrangements were intended for circumstances where the visitor’s presence was central to the immediate health and wellbeing of the resident.
12. The ECG would be allowed to visit even when the care home was in lockdown due to a COVID-19 outbreak, unless there were specific reasons not to do so. The guidance stated ECGs should be able to visit more often than other visitors. The exact arrangements were to be agreed between the care home, the resident and their family, with professional support if required. This would follow an individual risk assessment of the resident’s needs.
13. ECGs required regular tests which the guidance said could be taken onsite or at home, although testing onsite was preferable for assurance purposes.

What happened

14. Ms X is one of three siblings. Their mother, Mrs M, has been a resident at Montpellier Care Home for some time. Montpellier Care Home is owned by Methodist Homes. Mrs M has been assessed as lacking capacity to make decisions regarding her accommodation, care and treatment.
15. At the end of June 2021, Ms X asked the Care Home if she could be appointed as Mrs M’s essential care giver (ECG). Ms X wanted to visit Mrs M in her room to help tidy her wardrobe and belongings.
16. The Care Home manager responded on 2 July to say this type of visit did not meet the criteria as these tasks did not classify as ‘essential care’. The manager said that there were regular opportunities for visiting in the visiting room/gardens and also regular outings away from the Care Home were allowed. Ms X was offered a one off visit to help Mrs M organise her room which took place at the beginning of July.
17. On 8 July, Ms X contacted the Care Home to say Mrs M’s iPad was not working and so she had not been able to have a video call with her the previous evening. A care worker responded the same day to say they had checked Mrs M’s iPad and it was fully charged. They explained there were problems sometimes with the internet connection at the Care Home.
18. Ms X was admitted to hospital for a number of days in July. When she was discharged, she said she tried to contact Mrs M on her iPad but it was not working and the staff were unhelpful. Ms X said that when she collected Mrs M’s iPad at the end of July, she found her phone number had been blocked.
19. At the beginning of August one of Ms X’s siblings emailed Ms X to suggest the three siblings had a meeting with the Care Home to discuss the implications to Mrs M’s welfare of Ms X telling Mrs M about her hospitalisation. The Care Home manager sent a meeting link shortly afterwards.
20. Ms X emailed the manager to explain she had blocked her siblings some time ago from contacting her to prevent “further damage to my mental health”. She said she would attend the meeting.
21. On 13 August, both of Ms X’s siblings emailed her separately to express concerns around Ms X’s behaviour towards Mrs M and the Care Home. Both siblings said they did not feel Mrs M needed ECG visits at present. Both also said Ms X had caused Mrs M significant distress when she told her she had been in hospital.
22. On 19 August, Ms X asked if she could visit Mrs M in her bedroom so she could tidy her wardrobe. The Care Home manager responded and said Mrs M did not meet the criteria to have an ECG appointed at this time which meant visits in her bedroom were currently not allowed. The other types of visiting remained in place, which was indoor visiting in a dedicated visiting pod and outdoors.
23. In September, a Council best interest assessment was carried out with Mrs M. Because two of the siblings could not attend, the decision was made to interview each separately but for the assessment itself to go ahead without any of them present. The assessor recommended an independent personal representative (PR) was appointed for Mrs M.
24. In October, Ms X asked the Care Provider if she could have a meeting to go through Mrs M’s care plan. One was set up but then cancelled by the Care Provider. Ms X was told it was because no family member had permission to access Mrs M’s personal records.
25. At the end of October, the Care Home went into lockdown. The Care Home stopped all visiting other than essential visits and non-contact visits in the visiting pod. By this stage, Ms X had been appointed as Mrs M’s ECG and so her visits could continue.
26. In October, a Care Provider manager (Manager C) responded to a number of complaints Ms X had raised over the previous three months. Manager C made the following points:
• no staff member had blocked Ms X on Mrs M’s iPad and no staff were aware of any issues around Mrs M’s iPad;
• the decision was taken to not allow Ms X to attend the best interest meeting because the other siblings were not attending. However, the best interest assessor contacted each sibling for their views; and
• Mrs M’s PR would determine whether it was in Mrs M’s best interests for family members to have access to her personal records.
27. In November, the manager sent Ms X the visiting protocols she had requested in her complaint. The manager said that as an ECG, Ms X could continue to visit Mrs M at least twice a week, and one of her visits could be in her bedroom. The manager said that if Ms X was willing to visit outside with Mrs M the number of visits could increase.
28. Ms X was unhappy with the complaint response and asked for the matters to be escalated. She made the following points:
• the best interest assessor’s report stated the Care Home manager informed her Ms X’s complaints had been addressed through the complaints procedures when this was not the case;
• the response did not address her complaint that the manager failed to apply the latest government guidance relating to ECGs and she had requested Mrs M’s risk assessment but had not received this; and
• she did not believe the statement that staff had not blocked her on Mrs M’s iPad.
29. A senior Care Provider manager (Manager D) responded to say they would arrange a meeting with Manager C, the best interest assessor and Ms X. Ms X was unhappy and said she did not want a meeting, and this was not part of the complaints process. She said Manager D’s attempt not to follow its complaints procedures was unacceptable.
30. Manager D responded to state they were committed to resolving Ms X’s complaints, but the meeting was part of the review. Ms X’s siblings and Mrs M’s PR would also attend. Following the meeting, the Care Provider would escalate Ms X’s complaint and respond to her.
31. The Council emailed Manager D to inform her Ms P had been appointed as Mrs M’s PR. It had also appointed Mrs M a Council social worker who had been updated on the situation.
32. The meeting was arranged for 14 December. Ms X declined to attend. She again stated the Care Provider had failed to follow its complaints procedure.
33. Mrs M’s social worker contacted Ms X to say the meeting had been cancelled. It was arranged that Ms X and Mrs M’s PR would meet with Mrs M in the new year to discuss Ms X’s status as an ECG and to gauge Mrs M’s views on this.
34. On 9 December, the Care Home sent out new visiting guidance to families. This stated ECGs could have pre-booked visits in residents’ bedrooms.
35. The Care Home issued new visiting guidance on 17 December. This mainly concerned COVID-19 testing regimes and the nomination by every resident of three named visitors as well as an ECG.
36. Ms X contacted Officer D on 22 December to state she had read the Provider’s complaints policy and should have received a written copy of her initial complaint. This had not happened, and Ms X asked for one to be sent to her.
37. Officer D responded and said that because all of Ms X’s complaints had been made by email, it had not been considered necessary to send a written copy of her complaint. Ms X replied and said some of her complaints had been made verbally, she had no faith in the Provider’s complaints handling and she wanted a written copy of her complaint as well the notes of the telephone conversation held with the Care Home manager last July.
38. A senior Care Provider manager (Manager E) invited Ms X to a meeting to discuss her complaints. Ms X refused and said she would send a written account of her complaints.
39. The following day, one of Ms X’s siblings emailed her. The sibling said they had concerns about Ms X’s behaviour and its impact on the staff at the Care Home. They asked Ms X in future to pass any concerns to them to deal with and also stated they were trying to have Ms X’s position as ECG removed.
40. At the end of December, Ms X challenged the Care Home’s rules that lateral flow tests (LFTs) must be carried out on the premises because she wanted to test herself at home. Ms X considered the Care Home had not properly applied the government guidance which said visitors could test at home. The Care Home referenced the section of the government guidance which stated “onsite testing was preferable for assurance purposes” and stated the current guidelines would remain in place.
41. The following day, Ms X visited and was upset part of the garden was blocked off to her. She later took a photo of a notice in the Care Home foyer and said a care worker told her off, upsetting Mrs M.
42. The two siblings contacted Ms X shortly afterwards. They asked her not to visit Mrs M until the issue around ECG status had been resolved. The siblings said the Care Home had reported Ms X continued to be rude and abusive to staff members.
43. Ms X asked to speak to Manager E as a matter of urgency. This took place on 5 January. Manager E emailed Ms X her complaint summary following the call. As part of this, Manager E said, amongst other things, they would look at the issues around COVID-19 testing and Mrs M’s iPad. Manager E also said they had spoken to the Care Home manager who had said the garden was partly blocked off because the maximum number of residents were already accessing that area. Manager E said they would also arrange a meeting at the Care Home to try to repair the broken relationship once the current outbreak had cleared.
44. Ms X was unhappy with the response from Manager E and asked for another phone call with them. She said there were no other residents in the garden and asked Manager E to check the CCTV. When Manager E said they would not, Ms X said she felt they were “just prepared to take anything the manager said to be true, regardless of the facts”.
45. Ms X said she went to the Care Home on 31 January 2022 to collect Mrs M. After being challenged because she had carried out her own test at home (as opposed to staff carrying it out), which had now been agreed with the Care Home manager, Ms X said there was “a huge argument… the care home manager came into the lobby and told me off for being indiscrete about the arrangement, and I pointed out to her that the indiscretion was caused by her staff challenging me… mum was very distressed by the upset”.
46. On 1 February, Manager E emailed Ms X to ask about meeting with her. Ms X said she would not meet with them and wanted the matter dealing with via formal channels. Manager E responded and said the breakdown in relations would not be resolved by correspondence. They asked Ms X to reconsider because it was in Mrs M’s best interests to resolve the matter as speedily and amicably as possible.
47. In February, Ms X stood down as Mrs M’s ECG as Mrs M now had a PR. Visits generally continued to take place offsite with Ms X carrying out her own COVID-19 tests and collecting Mrs M from her room via the French windows which meant she did not have to go through the Care Home main building. Issues relating to Mrs M’s health were monitored and actioned by the PR and Mrs M’s social worker.
48. Ms X complained to the Ombudsman.

My findings

Visiting and essential care giver status

49. The government issued updated guidance in June 2021 which stated all residents should be given the opportunity to nominate an ECG. The guidance stated the intention of the ECG was to provide care and support which was central to the immediate health and wellbeing of the resident.
50. Ms X requested ECG status in July because she wished to help sort out Mrs M’s clothes and room. The Care Home manager considered her request and refused on the basis that this was not central to Mrs M’s health or wellbeing. In doing so, the manager gave consideration to the particular circumstances of the case. In addition, there were disagreements at that time amongst the siblings over whether Ms X should have ECG status which also affected the decision-making process. There was no fault in the Care Provider’s decision-making or actions.
51. But even if I did find fault, there was no significant injustice. There is nothing to indicate Mrs M specifically needed visits in her bedroom. Ms X was of the view Mrs M needed help to sort through her clothes and even though she was not given ECG status, this went ahead without undue delay.
52. Furthermore, other than the Care Home’s refusal to allow bedroom visits, which it was entitled to do, there is nothing to indicate it discriminated against Ms X and Mrs M by unduly restricting the number of visits Ms X could make. She remained able to visit in the pods and was allowed to take Mrs M out for visits. Regardless of whether ECG status was in place or not, the manager was entitled to manage visits across the Care Home through a booking system to ensure sufficient infection control arrangements were in place.

Contact by the Care Provider with Ms X’s siblings and the information provided to them about Ms X

53. From the information provided by the Care Provider and Ms X, there were clear disagreements between Ms X and her siblings about the role of Ms X in Mrs M’s care. The Care Home also stated it experienced difficulties with Ms X at times and felt her behaviour sometimes impacted on Mrs M. No sibling had authority to make decisions about Mrs M’s care over the wishes of the others.
54. The Care Provider had a duty of care towards Mrs M. It was entitled to speak to family members about matters affecting Mrs M’s wellbeing. The Care Provider attempted various ways to find a solution to some of the family’s issues and then involved a Council social worker. These were appropriate actions to take. Later, the decision was taken to appoint a personal representative for Mrs M. Again, there was no fault in these actions. They are normal steps taken by care providers by in situations where family members disagree about care arrangements.
55. Ms X believes the Care Provider misinformed her siblings. There is no evidence to support that. And again, the Care Provider took the steps we would expect to see where family members disagree. There was no fault in the Care Provider’s actions.

Lateral flow tests

56. The Care Home requested Ms X carry out her LFTs on site. This was in line with the guidance that said the Care Home manager could decide what was appropriate. The manager later relaxed this rule so Ms X could test before visiting the Care Home. There was no fault in the Care Provider’s actions.

Complaint handling

57. The Care Provider responded to Ms X’s complaints thoroughly and robustly. It considered meetings with her would help to resolve matters and mend the relationship which had broken down. This was an appropriate way to handle matters. It provided answers when it could but for some issues, such as Mrs M’s iPad, it could find no explanation which is understandable based on available evidence.
58. When Ms X said she wished the Care Provider to send her a copy of her complaint in writing it did so and explained why it had not done so earlier. The Care Provider’s decision not to review CCTV over the garden being closed off to Ms X, was proportionate to any likely injustice any fault may have caused her or Mrs M and does not cast doubt on any other responses it made.

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Final decision

59. I have completed my investigation. There was no fault in the Care Provider’s actions.

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Investigator's decision on behalf of the Ombudsman