The Ombudsman's final decision
Summary: Mr X complains about the care his father, Mr Y, received at Stainton Lodge Care Centre, which the Council arranged for him. He says the lack of infection prevention and control resulted in his father catching COVID-19 from which he died. Stainton Lodge did not tell Mr Y’s family or the Council about an outbreak of COVID-19 before he went to stay there and failed to do a COVID-19 risk assessment. This prevented his family from making an informed decision about placing him there. The Council needs to apologise and make a symbolic payment to Mr X for the distress caused.
The complaint
The complainant, whom I shall refer to as Mr X, complains about the care his father received at Stainton Lodge Care Centre, which the Council arranged for him. He says the lack of infection prevention and control resulted in his father catching COVID-19 from which he died.
The Ombudsman’s role and powers
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) 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) 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 and care provider followed the relevant legislation, guidance and our published “ Good Administrative Practice during the response to COVID-19 ”.
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, section 25(7), as amended)
How I considered this complaint
I have: considered the complaint and the documents provided by Mr X; discussed the complaint with Mr X and his partner Ms W; considered the documents the Council has provided; considered the Ombudsman’s guidance on remedies; and invited comments on a draft of this statement from Mr X, the Council and Stainton Lodge, for me to consider before making my final decision.
What I found
What happened Mr Y had lived at home with support from his family. He had dementia, other age‑related medical conditions and a medical condition affecting his lungs. As Mr X was due to go away in September 2021, the Council arranged 18 days of residential respite care for Mr Y at Stainton Lodge Care Centre (Stainton Lodge), where his wife was already a resident.
On 23 August Stainton Lodge had an outbreak of COVID-19 in a ground floor unit. Public Health England advised Stainton Lodge to do a balanced risk assessment before taking any new residents. Mr X says Stainton Lodge did not tell them about the outbreak, although it had told them about previous outbreaks.
Stainton Lodge visited Mr Y at home on 21 September to test him for COVID-19. Ms W was with him during the visit. Stainton Lodge says it told them about the outbreak of COVID-19. Ms W says this is not true. Mr X says they would not have agreed to Mr Y staying at Stainton Lodge if they had known there was COVID-19 there and would have arranged other care for his father while he was away.
Mr Y went to stay at Stainton Lodge on 23 September, having tested negative for COVID-19.
On 5 October Mr Y had a temperature. The next day Ms W called Stainton Lodge to arrange a visit for 7 October. However, on 7 October Stainton Lodge told her it had closed to visitors because of an outbreak of COVID-19. It called Mr X and told him his father had COVID-19.
Mr Y went into hospital on 8 October.
Mr X returned home on 9 October. The hospital told him his father’s condition was stable.
On 10 October the hospital told Mr X his father’s condition had worsened so his family should visit to say goodbye. They visited twice that day.
Mr Y died on 11 October.
Mr X complained to the Council.
When the Council replied to Mr X’s complaint in November, it said: a visit to Stainton Lodge revealed poor recording of temperature checks and lateral flow tests; an inspection of infection prevention and control measures at Stainton Lodge on 30 September had revealed areas of concern (these included inadequate use of personal protective equipment and clinical waste bins in corridors outside the rooms of people with COVID-19); Stainton Lodge’s records showed limited movement of staff between the different units in the home (for instance to cover for other staff and to limit the use of agency staff), which was in line with Government guidance in place at the time; before admitting Mr Y, Stainton Lodge should have done a COVID-19 risk assessment, involving his family and social worker, but did not do one; there was no documented evidence of telling the family about the COVID-19 outbreak in Stainton Lodge’s records; there had been communication failings between other public bodies over the COVID-19 outbreak at Stainton Lodge; and it would refund the £505.42 Mr Y had paid for his stay at Stainton Lodge.
The Council said: Stainton Lodge would be asked to: complete accurate and timely records for staff and visitors, including negative test results, temperatures, COVID-19 vaccinations and names and signatures of visitors; update COVID-19 risk assessments for all residents and complete them for all new residents in cooperation with key professionals; improve communication with families and professionals over outbreaks of COVID-19; and it would work with other public bodies to ensure improved communication over outbreaks of COVID-19.
Mr X says they had kept Mr Y safe from COVID-19, even when Ms W contracted it. He says Mr Y would not have caught COVID-19 if he had not gone to Stainton Lodge.
Is there evidence of fault by the Council which caused injustice?
The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards on its website. Regulation 20 relates to a general duty of candour and requires care providers to act in an open and transparent way. Regulation 12 requires care providers to provide safe care and treatment, which includes assessing the risks to each individual.
Stainton Lodge failed to tell Mr X about the outbreak of COVID-19. It should have told him about the outbreak in August because his mother was already living there. There is no evidence it told Ms W about the outbreak when it visited on 21 September. Nor did it tell the Council about the outbreak. Stainton Lodge also failed to do a COVID-19 risk assessment before Mr Y went to stay there.
Stainton Lodge’s failings are faults for which the Council is accountable (see paragraph 5 above). They prevented Mr Y’s family from making an informed decision about placing him there. It seems unlikely they would have agreed to do so and therefore Mr Y would not have contracted COVID-19 at Stainton Lodge from which he died. This has caused avoidable distress and justifiable anger. Stainton Lodge’s failings are also potential breaches of the fundamental standards referred to above.
Agreed action
When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of Stainton Lodge, I have made recommendations to the Council.
I recommended the Council within four weeks writes to Mr X acknowledging and apologising for the failings I have identified and makes a symbolic payment to him of £1,500 for the distress caused. The Council has agreed to do this.
Under the terms of our Memorandum of Understanding and information sharing protocol with CQC, I will send it a copy of my final decision statement.
Final decision
I have completed my investigation on the basis there has been fault causing injustice which requires a remedy.
Investigator's decision on behalf of the Ombudsman