Summary: Mrs X complained about the level of care provided to her mother, Mrs Y, by the care home commissioned by the Council. She also complained about delays in the safeguarding process. There was delay in the safeguarding process. The Council will apologise, pay Mrs X £100 to remedy the additional time and trouble caused, and make changes to its processes.

The complaint

1. Mrs X complained about the level of care provided to her mother, Mrs Y, by Vesta Lodge, in the days before she was admitted to hospital, where she died. Mrs X said the failings caused her mother to suffer in her final days, which caused Mrs X distress and upset. The Council arranged and funded Mrs Y’s care and is therefore responsible for any failures on the part of the care home.
2. Mrs X also complained about the Council’s safeguarding response. She said there were delays in dealing with the referral and her concerns were ignored. She said this aggravated the distress caused and she felt angry and frustrated.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether an organisation’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. 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/care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7.  

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How I considered this complaint

8. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the information the Council provided;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
9. Mrs X and the Council had an opportunity to comment on two draft decisions and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Fundamental Standards of Care

10. 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. The standards include:
• Person-centred care (Regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences. Providers must involve a person acting on the service user’s behalf in the planning of their care and treatment.
• Safe care and treatment (Regulation 12): Providers must do all that is reasonably practicable to mitigate risks to the service user’s health and safety. The provider must have arrangements to take appropriate action if there is a clinical or medical emergency.
• Food and drink (Regulation 14): Service users must have enough to eat and drink to keep them in good health while they receive care and treatment.

Admission and care of residents in a care home during the COVID-19 pandemic

11. The Government issued guidance for care homes, which was updated regularly during the COVID-19 pandemic.
12. The guidance said care homes should monitor residents and staff for COVID-19 symptoms daily. These symptoms included a fever (over 37.8°C), cough or shortness of breath. The Guidance notes that symptoms may be more nuanced in older people with other illnesses, who may present with flu-like illness, respiratory illness, new onset confusion, reduced alertness, reduced mobility, or diarrhoea and sometimes do not develop fever. Such changes should alert staff to the possibility of a COVID-19 infection.
13. The guidance defined a COVID-19 outbreak as two or more confirmed cases, or clinically suspected cases, amongst people associated with the same setting, with the onset of symptoms within 14 days. Where an outbreak was suspected or confirmed certain actions had to be taken to prevent the spread of infection, including the restriction of visitors, except where a resident was receiving end of life care.

CQC

14. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers which meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.

Adult safeguarding

15. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

What happened

Level of care

16. Mrs Y moved to Vesta Lodge in 2018. She had a number of serious health conditions and had been diagnosed with dementia by the time she became unwell in early January 2021.
17. The care home noted Mrs Y had a temperature and a cough on 8 January 2021. It consulted the GP, who suspected COVID-19 and prescribed oral antibiotics for a possible secondary chest infection. A COVID-19 test was done on 9 January as part of the weekly tests for all residents and staff.
18. The care home noted Mrs Y’s speech was slurred on 11 January and contacted the GP for advice in case she had suffered a stroke. The GP saw Mrs Y by video conference. They concluded there was no evidence of a stroke or heart attack and advised the care home to continue with the antibiotics.
19. On 11 January Mrs Y declined food and drinks and remained in bed. The GP carried out a video consultation that evening.
20. On 12 January, the care home was informed Mrs Y had tested positive for COVID-19. It contacted Mrs X to inform her. That day Mrs Y managed small amounts of fluids. Her temperature had stabilised, but she spent the afternoon in bed.
21. On 13 January Mrs X said she spoke to Mrs Y, whose breathing was laboured. Mrs X contacted the GP the same day and asked them to prescribe steroids. Mrs X said she would provide a nebuliser. The GP spoke to the care home, who reported Mrs Y was stable and that her breathing had improved since the last review. The GP concluded that steroids and a nebuliser were not needed.
22. On 14 January 2021 Mrs X and her sister visited Mrs Y. Mrs X said Mrs Y could not speak or function properly, and she was trembling. They did not report any concerns to care home staff, although the care home described Mrs Y as “poorly”. In the evening, Mrs X emailed to thank the manager for allowing a visit. She asked them to ask the doctor to confirm kidney failure and consider whether Mrs Y could “have something to make her more comfortable”.
23. On 15 January the care home contacted the GP again as there was evidence of blood and a green discharge on Mrs Y’s pad. The GP diagnosed a vaginal thrush, linked to the antibiotics, for which they prescribed a pessary.
24. Also, on 15 January Mrs X contacted the GP as she was concerned about Mrs Y’s weight loss and that she was nearing the end of her life. The GP said they would carry out a further review later that day.
25. In the meantime, Mrs X visited Mrs Y again. She said Mrs Y’s pad had not been changed since the day before and that it was soiled with urine, faeces, blood and a green discharge. She was concerned about Mrs Y’s condition and called an ambulance. She said the ambulance crew put Mrs Y on a drip because she was severely dehydrated, and they suspected sepsis. Mrs Y was admitted to hospital where she died on 26 January 2021.
26. Mrs X provided a video to the care home in support of her complaint that the pad had not been changed. The care home’s investigation report said this showed some pale green discharge only. Care home records state Mrs Y’s pad was changed overnight on 14/15 January and again in the morning of 15 January.

Safeguarding

27. Mrs X reported her concerns about the care home to the Care Quality Commission (CQC), which made a safeguarding referral to the Council on 18 January 2021.
28. The Council spoke to Mrs X. It asked the care home for an investigation report, which the care home provided on 4 February, with relevant supporting records. This included the daily care records, and witness statements from six staff members who were on duty on 14 and 15 January 2021. The Council also spoke to the GP practice and reviewed its records for the relevant period.
29. In early March the Council said it was reviewing the information and would either be making further enquiries or arranging a safeguarding case conference. Mrs X chased the Council several times about the case conference in April and May. The Council confirmed it was arranging this but needed to find a date all the professionals could attend. At times, it promised information within a specific time but did not provide it.
30. Mrs X was unhappy with the delay in arranging a case conference and complained. She said she felt she was being “fobbed off”. Although the Council did not uphold the complaint, it decided to reallocate the case to another officer.
31. Council records show it started organising the case conference in mid-May. It initially proposed a date in late June, but a key professional could not attend on that day, and the earliest date when all relevant professionals could attend was in early August. It confirmed the date to Mrs X on 13 July.
32. In August 2021, the Council held the safeguarding case conference. The minutes of the conference record:
• the steps the Council took to investigate the matter and the actions the care home had taken following the complaint;
• that Mrs X and the care home had a chance to explain what happened but there was a conflict between their accounts; and
• that the conference was adjourned to obtain reports from the ambulance crew and hospital, which Mrs X said could confirm her version of events.
33. A second case conference was held in early September 2021. The minutes record:
• there was a dispute between Mrs X and the care home around the circumstances in which the ambulance was called. Mrs X said the care home refused to call an ambulance. The care home said staff were not asked to do so;
• the report from the paramedics who attended, recorded Mrs Y had a temperature, some breathing difficulties and appeared to be septic. The report said the crew administered oxygen and fluids. It said their impression was that Mrs Y was unresponsive and dehydrated. The paramedic crew did not report any safeguarding concerns;
• the hospital did not report any safeguarding concerns of neglect. The hospital representative stated that elderly people can become dehydrated very quickly, especially if they are septic or have an infection;
• the Council had seen a food and fluids chart from the week before Mrs Y was admitted to hospital. Mrs X said there were drinks in her mother’s room that were stale that had not been changed. The care home reported that fresh drinks were provided but that drinks could not be removed for 72 hours during the active phase of the COVID-19 outbreak;
• Mrs X raised concerns about the correct use of personal protective equipment (PPE). The CQC representative confirmed that an inspection following the COVID-19 outbreak had noted that masks were not being worn correctly and that remedial action had now been taken.
34. The Council decided to end the safeguarding investigation at that point. The minutes record it decided, on balance, to record the matter as “inconclusive”. The CQC inspector attending the meeting suggested the Ombudsman was better placed to resolve the family’s concerns about the level of care.
35. Mrs X complained to us, but we asked her to give the Council an opportunity to respond first. It did so on 3 December. It did not uphold the complaint. It said it had followed the correct process and her concerns were fully investigated. It said all the questions she raised in her complaint had been addressed in the case conference. However, there were contradictions in the information provided by the family and the care home, and this was why the outcome was recorded as “inconclusive”. In its comments on an earlier draft of this decision statement, the Council confirmed that if the safeguarding process had identified concerns with the level of care a referral would be made to the relevant team to consider them further but that was not appropriate in this case.
36. Mrs X remained unhappy and asked the Council to consider the complaint at stage 2 of its complaints process. It responded that it had considered her concerns about the safeguarding process, including whether there were delays. It said the questions she raised had been considered during the safeguarding enquiry and therefore were out of scope for the complaints process.
37. In response to my enquiries, the Council stressed the events complained about occurred during the COVID-19 pandemic, during which period there was an increase demand for services and staff shortages due to sickness or isolating.

My findings

Level of care

38. Care home records indicate Mrs Y became unwell on 8 January and the care home sought advice from her GP, which was appropriate. The records indicate the care home monitored Mrs Y’s condition, which appears to have fluctuated over the next few days, and spoke to the GP again on 11, 13 and 15 January 2021. The records show the care home appropriately sought and followed the GP’s advice.
39. Mrs X said the care home had not changed Mrs Y’s pad between her visit on 14 January and her further visit on 15 January. The care home’s records state Mrs Y’s pad was changed overnight on 14/15 January and again during the morning of 15 January. There is a conflict of evidence here that I cannot resolve and so make no finding about this aspect of the complaint.
40. Although Mrs Y was reported to be dehydrated on admission to hospital on 15 January, the care home records show she was being offered drinks appropriately.
41. Mrs X raised concerns about the use of PPE by care home staff. There was no requirement for the care home to record the use of PPE so there were no relevant records for me to consider. I note the CQC inspection later found evidence that masks were not being used correctly, but I cannot say if this was the case when staff were caring for Mrs Y. In any case, I would not be able to say that any incorrect use of PPE caused Mrs Y to become infected with COVID-19.

Safeguarding

42. The Council received the safeguarding referral on 18 January 2021. I note this was during the third national lockdown to prevent the spread of COVID-19. However, the Council spoke to Mrs X and the care home immediately and started making enquiries.
43. By late March there was sufficient information to arrange a case conference. The Council did not confirm the date of the case conference until mid-July. Whilst I accept there were pressures as a result of the COVID-19 pandemic, and that it needed to find a date that all key professionals could attend, I consider the Council took too long arrange and confirm the date. It also failed to keep Mrs X updated, which meant she had to keep contacting it for updates. The delay and lack of communication with Mrs X was fault. This caused avoidable frustration for Mrs X, who was put to additional time and trouble chasing the Council.
44. There was no fault in the way the Council made enquiries, considered the information available, or reached its conclusions on the safeguarding referral.

Complaints handling

45. Following a referral from us, the Council agreed to consider Mrs X’s complaint in mid-November and responded at stage 1 on 3 December. It carried out further investigation and responded at stage 2 on 17 December. There was no delay in responding to the complaint.
46. Mrs X did not accept the outcome of the safeguarding investigation, which was inconclusive due to inconsistencies in the evidence. She was clear that she considered the level of care provided by the care home was poor. The Council has confirmed it considered all her questions about the level of care in the safeguarding conferences and commented that the minutes are not a verbatim record of everything that was discussed. It said it would have taken further action if it had any concerns about the level of care as a result of those discussions. It also said the care home had responded separately to Mrs X to address her concerns.
47. In this case, the Council had commissioned the care and therefore remained responsible for it. There can be failings in the level of care that do not amount to safeguarding concerns and, whilst it is appropriate for them to be considered as part of the safeguarding process, the Council should confirm whether it has any concerns about the level of care when responding to complaints. Although the Council did not communicate this clearly in its complaint response, it did indicate its view was that all the issues had been addressed during the safeguarding process. On the basis, I have not found fault.

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Agreed actions

48. The Council will, within one month of the final decision:
• apologise to Mrs X for the delay in arranging the case conference and its failure to keep her updated; and
• pay her £100 to remedy the additional time and trouble she was put to in pursuing the matter.
49. The Council will, within three months of the final decision:
• prepare an information sheet for those reporting safeguarding concerns to explain the safeguarding process and manage their expectations about the likely timescales; and
• remind relevant staff to keep those reporting safeguarding concerns updated and, where appropriate, explain the likely timescales.

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Final decision

50. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman