Summary: The Ombudsmen will not investigate a complaint about a care home’s restrictions on visiting and sharing of information with relatives during the COVID-19 pandemic. This is because we are unlikely to find fault causing injustice with the actions of the care home.

The complaint

1. Mr X complains about Care UK and the restrictions it imposed at Tall Trees Nursing Home (the Home) during the COVID-19 pandemic. In particular he complains the Home:
• did not allow him to be a ‘constant visitor’ to allow him to see Mrs Y, his mother in September 2020 and declined his requests for an exceptional visit;
• did not facilitate video calls at agreed times to allow him to speak with his mother; and
• excluded him from his mother’s care and well-being.
2. Mr X says this has led to his mother’s right to family life not being respected and has caused him distress at being unable to see his mother or be involved in her care.

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The Ombudsmen’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. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
5. 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’.
6. The Ombudsmen provide a free service, but must use public money carefully. They may decide not to start or continue with an investigation if they believe it is unlikely they would find fault, the injustice is not significant enough to justify their involvement, or it is unlikely they could add to any previous investigation by the bodies. (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I consider the information Mr X provided to us when he complained to us and in a telephone discussion with him. I have also considered the complaint response from the Home and information it has provided to our enquiries. I have also considered the relevant guidance in place at the time of the events complained about.
8. Mr X commented on a draft of my decision and I have considered these comments.
9. Mrs Y’s accommodation costs were met through section 117 aftercare funding. Section 117 aftercare places a joint responsibility on councils and NHS clinical commissioning groups (CCGs) for care planning and reviews. The Council, the CCG and the Home are therefore all included as organisations in the Ombudsmen’s consideration of this complaint.

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What I found

10. Mr X’s mother has dementia and was living in a care home when the COVID-19 pandemic began. Care homes had to introduce restrictions on visits to residents. The Home initially limited visits to outdoor visits and it allowed two ‘constant visitors’. In this case Mr X and his stepfather were the ‘constant visitors’.
11. In September 2020 the Home started to allow indoor visits, but restricted this to just one ‘constant visitor’. The family agreed that Mr X’s stepfather would be the named ‘constant visitor’.
12. The Home’s policy to only allow one constant visitor at this time was in line with Government guidance for visiting arrangements in care homes (updated 21 September 2020).
13. On 17 October 2020 the Government moved most of Essex to ‘tier 2’, or ‘high risk’. This included the Home. It meant indoor visits in care homes were no longer allowed except in exceptional circumstances such as end of life.
14. Government guidance for ‘high risk’ areas at the time said visiting should be limited to one ‘constant visitor’ wherever possible. This restriction was in place until the Government updated the guidance in March 2021.
15. The Home did however manage to arrange for Mr X to visit his mother in December 2020, prior to the Government imposing a further national lockdown on 26 December.
16. Mr X had also arranged for Mrs Y to have access to a tablet so they could have video calls while visiting restrictions were in place. However, Mr X says the Home did not facilitate the calls so he could not speak to his mother when he wanted to.
17. The Home’s complaint response explained that Mrs Y was “quite active” and because of her dementia, she was at risk of falling. The Home said its staff would answer the calls whenever possible, but they had to prioritise minimising the risk of Mrs Y falling. The Home suggested a specific time to call to try to ensure Mrs Y was available to take calls, but this was not always possible. It also suggested they could use the Home’s own tablets or video phone.
18. Mr X has confirmed he has been able to have video calls with his mother, but he says this was more at the Home’s convenience rather when than he was available.
19. I understand it must have been frustrating for Mr X at times, but the priority for the Home staff is to care for Mrs Y. We are unlikely to find fault by the Home for focusing on caring duties over answering video calls if it was not a convenient or suitable time for Mrs Y or the Home staff. Also, the Home’s suggestions seem reasonable and pragmatic. While it may not always be possible for the Home to answer the calls, the Home has shown it is willing to try different solutions and an Ombudsmen investigation is unlikely to achieve more. If Mr X has further problems arranging calls in the future, he would need to raise these with the Home.
20. I can appreciate the visiting restrictions were difficult and distressing for Mr X, but the Home appears to have acted in line with national guidance. It also made alternative arrangements to help Mr X and Mrs Y keep in contact. While this may not be exactly as Mr X would like, I consider we are unlikely to find fault in the Home’s actions.
21. Mr X also complains the Home does not provide him with regular updates about his mother’s care or well-being. The Home provides updates to Mr X’s stepfather who is recorded as next of kin. This agreement has been in place since 2019. Mr X says the Home agreed to provide updates in May 2020, but this did not happen. This agreement was second-hand information via a member of the dementia team and the Home has refuted this. There is clearly a difference in the way some information has been recalled or understood. However, the Home has said its staff are happy to discuss his mother’s care any time Mr X called. Mr X has explained that his relationship with his stepfather has broken down and his stepfather does not pass on any information the Home shares.
22. No one holds power of attorney for Mrs Y’s health and welfare and therefore no family member is lawfully acting on her behalf. The Home cannot be expected to provide regular updates to all family members and it seems reasonable that it would have a single named contact. The Home has considered this and decided Mrs Y’s husband should be the named contact.
23. I appreciate there are difficulties between Mr X and his stepfather and that this is likely to cause Mr X distress. This is unfortunate, but the Home or other organisations are not responsible for this. There is no indication the Home has placed any limits on the level of contact Mr X has with it to receive updates. The Home therefore appears to have given due regard to Mrs Y’s needs and I do not consider its decision to name her husband as the contact for regular updates is an indication of fault.

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Decision

24. Subject to further comments by Mr X, the Ombudsmen will not investigate this complaint. This is because we are unlikely to find fault in the Home’s actions.

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Investigator's decision on behalf of the Ombudsman