Summary: Mr X complained the Council placed contact restrictions on his visits to his late partner, Mrs Y, who was living in a Council commissioned care home. The Council was at fault for not clearly explaining they were recommendations and the reasons for them. It has agreed to apologise to Mr X for the distress and frustration this caused and to review its procedures to prevent a recurrence of the fault. Mr X also complained the care home did not tell him his partner was put on end of life care when she was admitted to the care home. There was no fault as Mrs Y was not on end of life care when she moved into the care home. Mr X was made aware when she was nearing the end of her life.

The complaint

1. Mr X complained the Council placed contact restrictions on him regarding visits to his late partner, Mrs Y, who was living in a Council commissioned care home. Mr X says this limited the amount and type of contact he had with his partner prior to her passing and caused him unnecessary distress.
2. Mr X also complained the care home did not tell him his partner was put on end of life care when she was admitted to the care home. Mr X says he was not told of this until three days before she died, which caused him significant distress.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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, sections 24A(1)(A) and 25(7), 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)
8. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

9. I considered evidence provided by Mr X, the Council and the care home as well as relevant law, policy and guidance.
10. I gave Mr X, the Council and the care home an opportunity to comment on a draft of this decision. I considered comments I received before making a final decision.

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What I found

The relevant law and guidance

Mental capacity

11. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
12. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
13. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.

Safeguarding

14. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. 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)

Visiting care homes

15. 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:
• Service users must be treated with dignity and respect and their privacy ensured. People's relationships with their visitors, carer, friends, family or relevant other persons should be respected and privacy maintained as far as reasonably practicable during visits. People must be supported to maintain relationships that are important to them while they are receiving care and treatment (regulation 10).
16. The Competition and Markets Authority (CMA) has issued guidance on consumer law to help care homes comply with their legal obligations (UK care home providers for older people – advice on consumer law December 2021). The guidance says residents must be allowed to see their family and friends if they want to and care homes must ensure that there are suitable opportunities to see visitors. To help care homes comply with consumer law obligations they should ensure the circumstances in which visitors access to the home can be restricted are very narrow and do not go beyond what is reasonably required to protect the home’s legitimate interest or those of the residents. Any restriction or ban should be kept under regular review and removed as soon as practicably possible.

The Human Rights Act

17. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
18. The Ombudsman’s 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 the Ombudsman can make decisions about 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.

What happened

19. Mr X and Mrs Y lived together. In Spring 2023 Mrs Y had a fall and was admitted to hospital. In June 2023, whilst Mrs Y was in hospital, the Council received two safeguarding concerns regarding allegations of controlling and coercive behaviour from Mr X and that Mr X was refusing to engage in discussions regarding discharging Mrs Y home. The Council decided further enquiries were needed, Mrs Y’s needs should be assessed and potentially a mental capacity assessment completed. The outcome of one safeguarding concern was recorded as inconclusive and the other as not substantiated.
20. In mid July 2023 Mr X visited Mrs Y in hospital. Following this visit the Council noted Mr X stopped engaging with the discharge arrangements and stopped visiting Mrs Y. The Council completed a care needs assessment which recommended a 24 hour residential placement for Mrs Y. The Council carried out a mental capacity assessment and concluded on balance of probability that Mrs Y had the capacity to make a decision between living in the community and 24 hour care. Mrs Y consented to the Council finding her a care home placement. It carried out a second mental capacity assessment and determined Mrs Y did not have capacity to manage her finances. The needs assessment noted Mrs Y said she did not want the Council to contact her relatives. Mrs Y expressed her upset that Mr X was no longer visiting her.
21. A friend of Mrs Y’s visited her in hospital. Ward staff spoke with Mrs Y and her friend who agreed for her to be named as Mrs Y’s next of kin.
22. In late July 2023 Mrs Y moved to a care home. A relative visited Mrs Y, which Mrs Y agreed to, and the relative agreed to apply to the Court of Protection for deputyship to support Mrs Y with her finances.
23. Mr X contacted the Council in late July 2023 as he wanted to know where Mrs Y was living and to visit her.
24. Social worker 1 spoke to Mrs Y. They noted she wanted Mr X to visit but was concerned about his relationship with her other visitors. Social worker 1 reassured her that visits would be staggered and Mrs Y agreed with this. The social worker noted Mrs Y wanted her friend to remain as her next of kin and a relative to support her with her finances. She wanted her relatives and other friends to visit.
25. Social worker 1 spoke to the care home and advised that if Mrs Y consented to visits from Mr X he should ring and make appointments, as should other visitors, to ensure the visits did not conflict. They noted Mr X’s visits should take place in the lounge to alleviate concerns. The social worker advised the care home that any concerns should be raised with the safeguarding team.
26. Social worker 1 spoke to Mr X and provided the care home’s address. They noted they instructed him to make contact and arrange a time to visit as the visit should be staggered with Mrs Y’s other visitors. Mr X says he was told by social worker 1 that he could only visit Mrs Y on weekday mornings and visits would be supervised. He would need to pre-book visits and could not discuss family matters, financial or medical matters of concern.
27. Social worker 1 emailed the care home to confirm what was agreed. The Council did not email Mr X.
28. In early August 2023 Mr X contacted the Council to ask if he could visit Mrs Y at the weekend. An officer from the duty team spoke to the care home which said the recommendations were put in place by social worker 1, who said Mr X should visit in the open lounge and be supervised at all times.
29. A colleague of social worker 1 spoke to Mr X. He said staff watched over him whenever he visited Mrs Y. Mr X said he had private forms for Mrs Y to sign and a member of staff gave him no privacy. Mr X said he would stop visiting if the restrictions were not changed. The officer explained why the visits were set out as they were and said they had followed Mrs Y’s wishes, but they would ask social worker 1 to call Mr X on their return from absence. Social worker 1 did not receive the request.
30. Mr X emailed the Council in late August. He said he had visited Mrs Y and when asked if he could visit over the weekend was told by the care home he could not and Mrs Y was unhappy about this.
31. In early September 23 Mr X complained to the Council that the Council had never explained why the restrictions were in place and why his visits were supervised. He agreed to not discuss certain subjects if this was required but wanted to be able to see Mrs Y when he wanted.
32. Around this time the Council received a safeguarding concern that Mr X was coercing Mrs Y into signing documents at the care home. The Council decided a safeguarding enquiry was not required as a deputyship application was in progress. The Council decided no further action was required as the home had an appropriate management plan in place.
33. The NHS Trust on behalf of the Council responded to Mr X’s complaint in early October 2023. It said it received a safeguarding referral in June 2023 following initial discussions about Mrs Y’s potential discharge home. It was not substantiated but professionals had concerns Mr X was requesting Mrs Y sign documents she may not have the capacity to understand. It was therefore agreed with the care home that Mr X’s visits to Mrs Y would be supervised. It said its staff did not give any specific instructions to the care home about what he could discuss with Mrs Y but the protective measures were in place to ensure she did not sign any documents she may not have capacity to understand. It said Mrs Y was assessed as not having capacity regarding her financial affairs. It apologised for any unintentional distress he was caused.
34. It said a further safeguarding was raised in early September as Mr X presented Mrs Y with paperwork to sign. It asked that in future if Mr X wanted Mrs Y to sign documents, he was open with care staff so an assessment of Mrs Y’s capacity to understand those documents could be undertaken.
35. On the same date, the care home noted an incident where Mr X was asking Mrs Y to sign financial paperwork and was talking about finances and other issues which was causing Mrs Y to become agitated. The care home noted Mr X was shouting and would not calm down, so they asked him to leave.
36. Mrs Y’s condition deteriorated. In mid November 2023 a nurse contacted social worker 2 after speaking with Mr X who raised concerns about Mrs Y’s condition and not being informed of her being at the end of life. Social worker 2 spoke to the care home who advised Mr X was not on an end of life pathway (a palliative care planning pathway to identify and meet the needs of someone approaching end of life) at that time but it was awaiting the GP visit. The care home said Mr X’s visits were supervised as part of a safeguarding plan. It said there were no restrictions on when he could visit but it asked him not to visit at mealtimes as Mrs Y did not eat well when he visited. It had therefore asked Mr X to visit in the morning or afternoon. It said Mr X had not rung the home or visited in over nine weeks.
37. In early December social worker 2 spoke to Mr X. They noted he said he had been unwell and needed time to seek medical help. They noted he wanted to see Mrs Y alone and wanted to support Mrs Y at mealtimes.
38. The Council held a meeting to discuss Mr X’s concerns. It confirmed the restrictions were not a recommendation from the safeguarding but were put in place by the social worker and care home manager. It agreed supervised visits were not required.
39. In mid-December, social worker 2 contacted Mr X and advised him there was no legal requirement for visits to be supervised and they had informed the care home of this. They did advise visits should be booked in due to family dynamics and to avoid any disruption in the care home. Mr X visited Mrs Y and told the care home he would abide by the social worker’s advice and avoid weekend visits.
40. Around this time a multi-disciplinary team meeting was held with the care home, Mrs Y’s relative and medical professionals where it was agreed Mrs Y required palliative care and should have access to end of life medication if required.
41. In early January 2024 the care home referred Mrs Y to speech and language therapy due to concerns about her coughing after eating and drinking.
42. Mr X visited the care home later in January 2024. Staff noted a concern that Mr X had brought food in and was attempting to get Mrs Y to eat it and this caused her to cough. The notes record staff offered alternatives but Mr X continued with foods brought from home. It noted senior staff spoke to Mr X about the food consistencies not being safe for Mrs Y. A manager spoke to Mr X and explained Mrs Y was awaiting a speech and language therapy assessment due to her swallowing issues. They appreciated Mr X wanted her to eat more but they needed to ensure Mrs Y was not harmed. They also referred to an incident over Christmas where Mrs Y had choked on food. They told Mr X he would need to refrain from visiting at mealtimes so staff could support Mrs Y and prevent her choking.
43. Mrs Y died in early 2024.
44. In March 2024 Mr X raised further concerns about the restrictions and not being advised Mrs Y was at end of life. The Trust on behalf of the Council responded in April 2024. It said the initial measures were proportionate and in line with the Care Act. It said measures such as these can be stopped when situations change and when it was deemed they were no longer necessary they were removed. It said the decision to place Mrs Y on end of life care would have been made by medical staff and communication about this may be something he wished to discuss with the care home.

Findings

45. Mrs Y wanted her relatives, friends and Mr X to visit her. She had concerns about them visiting at the same time. The Council, in Mrs Y’s best interest, advised the care home that visits should be booked to avoid conflict. This advice was not fault.
46. However, the Council also told the care home Mr X’s visits should be held in the lounge so they could be supervised. There is nothing in the records to show this was discussed with Mrs Y and there is no proper consideration of the impact on Mrs Y’s right to family life. This was fault. The Council later said these were recommended restrictions and not compulsory. The Council should have made this clear to all parties. Our published ‘Principles of good administrative practice’ expects such decisions and the reasons for them to be in writing, even an email, as long as the decision is communicated clearly. Throughout the period, the Council gave contradictory information to Mr X, as it had said these were restrictions placed as a result of a safeguarding plan. The care home repeated the restrictions were part of a safeguarding plan and therefore it appears the care home was not aware they were just Council recommendations. If the Council considered the restrictions were necessary in Mrs Y’s best interest it should have formalised the arrangements through the mental capacity and best interests process. Its failure to do this was fault and meant Mr X believed he had no choice but to comply if he wished to visit Mrs Y.
47. The failure to advise Mr X in writing of the restrictions and the reasons for them was also fault. Mr X’s recollection of what he was told of the restrictions and those noted in the records by social worker 1 are different. The notes make no reference to avoiding discussing certain subjects or not visiting at weekends. As there are different recollections of what was said, I cannot come to a view. It is possible certain subjects were suggested to avoid upsetting Mrs Y. However, this failure to set out in writing any recommended restrictions is likely to have caused Mr X frustration and uncertainty.
48. As the restrictions were not formally implemented, they were not subject to a review. This was fault and is not in line with the CMA guidance.
49. The restrictions on Mr X visiting Mrs Y were in place from late July 2023 until mid December 2023. If the Council had been clear these were only recommendations, I cannot say even on balance of probability what difference, if any, this would have made. The Council may have proceeded to a best interest decision had it considered it necessary and still implemented some form of contact restriction. When the Council made it clear in December 2023 these were recommendations not restrictions, Mr X still agreed to staggered visits to avoid conflict with family members. However, the lack of clarity before then caused Mr X uncertainty and distress.
50. There were two concerns noted in the records whereby Mr X had sought to get Mrs Y to sign paperwork whilst in the care home. In its complaint response the Council advised Mr X that if he wanted Mrs Y to sign something he should be open with the care home who could decide whether Mrs Y had capacity to agree. Had the Council formally told Mr X this sooner, when it recommended the restrictions and the reasons for them, it may have prevented these incidents occurring.
51. The care home asked Mr X not to visit at mealtimes. It is acknowledged Mr X had concerns about Mrs Y’s eating. However, the care home noted Mrs Y became distressed when he visited at mealtimes, and it had concerns with the food Mr X offered Mrs Y and that she experienced coughing when he fed her. The care home was monitoring Mrs Y’s intake and had referred her to a speech and language therapist for support. It was not fault for it to decide, in Mrs Y’s best interests, that Mr X should not visit at mealtimes.
52. There is no evidence Mrs Y was considered to be at the end of life when admitted to the care home in July and therefore no fault. Some months later, during December 2023 the care home met with the GP who decided Mrs Y needed palliative care and anticipatory medication, as part of end of life care. Mr X says he was made aware three days before Mrs Y died that she was approaching end of her life. I will not investigate this point further as I am unlikely to find fault. Even if there was fault, this did not cause Mr X a significant injustice and there is nothing more I could achieve. Mrs Y’s condition deteriorated, and Mr X was aware of this from when he raised the deterioration in November and from visits from her friends who updated him. There were also several weeks in late 2023 when Mr X did not visit her. It is difficult to predict when someone will die but Mr X was able to visit her at the end of her life.

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Agreed Action

53. When a council commissions or arranges for another organisation to provide services we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions. Where we find fault with the actions of the service provider, we can make recommendations to the council alone. Here we have found some fault with the actions of the care provider and make the following recommendations to the Council.
54. Within one month of the final decision the Council has agreed to:
1. Apologise to Mr X for the uncertainty and distress he was caused by its failure to clarify in writing the basis on which it and the care home it commissioned, imposed contact restrictions on Mr X.
2. Remind relevant adult social care staff to ensure when seeking to limit contact between a client and their relatives they are clear with the family and care provider whether this is its recommendation to the family, or whether a formal best interests’ decision is required to introduce restrictions.
3. Review its procedures, and ensure they are in line with the updated CQC guidance of 2024, to ensure that where restrictions are placed on contact between a care home resident and their relatives, the nature of the restrictions is communicated in writing to the person on whom the restrictions are imposed and the care provider, and restrictions are reviewed regularly.
55. The Council should provide us with evidence it has complied with the above actions.

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Decision

56. I have completed my investigation. There was fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman