The Ombudsman's final decision
Summary: Mr X complains the Council failed to deal properly with Mrs Y’s move to Aadamson House Care Home, where she received inadequate care. The Council has apologised for the way it dealt with Mrs Y’s move to the Care Home. It also accepts the care she received there put her at risk of harm and has apologised for the distress caused to her family when she died of COVID-19. The Council also needs to make a symbolic payment to Mrs Y’s family for the avoidable distress and justifiable anger they have been caused.
The complaint
The complainant, whom I shall refer to as Mr X, complains the Council failed to deal properly with Mrs Y’s move to Aadamson House Care Home (the Care Home), where she received inadequate care.
What I have investigated I have investigated the complaint about the care Mrs Y received at the Care Home. I explain at the end of this statement why I have not investigated an allegation of assault by someone at the Care Home.
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 includes 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; considered the comments and documents the Council has provided in response to my enquiries; considered the Ombudsman’s guidance on remedies; and taken account of the comments made by Mr X, the Council and the Care Home on a draft of this statement before making my final decision.
What I found
What happened Mr X complains on behalf of Mrs Y’s husband and children. She went to stay in residential respite care in December 2019, having been in hospital after fracturing a hip.
On 21 January 2020 the Council completed an assessment with Mrs Y. The records say a home visit showed it was not ready for her return as there was too much furniture downstairs. Mrs Y told the Council she did not want to return home but wanted to move to a care home. The Council noted she had the mental capacity to decide where to have her care needs met.
On 22 January, the Council told Mr Y his wife was ready to leave the respite placement. It said she could not return home as a gas fire needed servicing and she could not get around downstairs because of the amount of furniture in the rooms. It said she could not stay upstairs as there was no way for her to get down the stairs. Mr Y said he would get a stairlift. The Council said Mrs Y would have to move to a short-term residential placement until a stairlift was in place.
The Council tried contacting Mr Y on 30 January but he was visiting his wife. It tried calling the residential placement but he had already left.
On 6 February the Care Home assessed Mrs Y and told the Council it could meet her needs. They agreed she would move there on 7 February. The Council told Broadfield House about the move and asked it to get Mr Y to call when he visited his wife that afternoon. According to the Council’s records, when it spoke to Mr Y he was very angry and said he would not allow his wife to go anywhere apart from home. The Council told him Mrs Y had said she did not want to go home and it was not safe for her to do so.
Mrs Y’s family had a stairlift fitted to aid a return home. However, on 13 March her family told the Council they had not removed furniture from downstairs, so it was still not safe for her return.
On 31 March Mrs Y’s family told the Council they had still not moved furniture from downstairs. By this time the country was in lockdown due to COVID-19. The Council extended Mrs Y’s placement at the Care Home during the lockdown.
The Council identified the need to review Mrs Y’s placement in July. It arranged to do this over the telephone on 18 August. However, as she had difficulty communicating over the telephone, it postponed the review until COVID-19 restrictions were lifted and it could review her placement in person. The Care Home told the Council Mrs Y did not want to return home.
On 18 September the Council told Mr X it had still not been able to review Mrs Y’s placement with her because of COVID-19 restrictions.
The Care Quality Commission (CQC) inspected the Care Home in October when concerns were raised about its management of COVID-19 and staffing levels. It rated the Care Home as inadequate overall (specifically in relation to being safe, effective and well-led). It also required improvements to make it caring and responsive. CQC put the Care Home into special measures. It found: “People were not always protected from avoidable harm. The provider failed to ensure people’s care and treatment was adequately assessed and planned in line with their needs and preferences. For example, risks associated with choking, mobility, bedrails, falls and nutrition.”
“The provider failed to ensure people were consistently protected from transmission of infectious disease including COVID-19.”
Mrs Y went into hospital on 26 October. She tested positive for COVID-19 and died on 31 October.
The Council made safeguarding enquiries into concerns the Care Home had not been complying with guidance on the use of personal protective equipment (PPE). When it completed its enquiries in January 2021, the Council: referenced the outcome of CQC’s inspection; noted that before CQC’s inspection, visiting professionals had often reminded staff at the care about the need to comply with guidance on the use of PPE; found the Care Home’s records for Mrs Y provided limited documentation and did not fully reflect her needs; substantiated the safeguarding concern of neglect and acts of omissions; and said “Although it cannot be determined how [Mrs Y] contracted the virus, there is evidence to suggest the Care Home failed to follow health advice”.
Mr X complained to the Council in April about: the fact the Care Home had not been closed down; excluding the family from decisions about Mrs Y’s care, including her move to the Care Home; unnecessary rudeness by the Care Home’s staff; the Care Home’s failure to help get Mrs Y to sign a form relating to her Post Office account; and segregating black and white residents at meal times.
When the Council replied in May, it said: there was no record of a discussion with Mrs Y or her family about the discharge to residential respite care in December 2019 and apologised; it should have consulted Mr Y about the plans to move Mrs Y to a care home in January 2020 and apologised; it could not investigate allegations of rudeness more fully (such issues needed to be raised at the time); without being able to share the details of concerns relating to the Care Home’s lack of communication and reluctance to cooperate, the Council could not fully investigate this part of the complaint; both the Council and CQC had identified failures to comply with COVID-19 guidance. They had worked extensively with the Care Home to improve and maintain a COVID-19 safe environment; it had not witnessed the segregation of black and white residents at meal times. The Care Home confirmed seating arrangements at meal times were a matter of personal choice and it would record this; and until recently a restriction on admitting new residents had been in place, while the Care Home worked to deliver service improvements.
Mr X wrote to the Council again in June. He said they were disappointed it had not agreed Mrs Y must have caught COVID-19 while at the Care Home. He asked for more information around Mrs Y’s move to the Care Home. He also asked the Council to explain what it meant by saying it could not share specific details of the family’s concerns with the care home.
When the Council replied in May it said: it had understood from conversations with Mr X that the family wanted to remain anonymous and did not want details of their concerns sharing with the Care Home; there was no record of confirming the transfer arrangements to the Care Home with Mr Y but the Council had tried contacting him in the short time between agreeing the placement and arranging the transfer; as the family had not given consent for details of specific incidents to be shared with the Care Home it could not ask the Care Home to respond to them; and it was regrettable Mrs Y caught COVID-19 and it was sorry for the impact this had on her family. It apologised for the uncertainty over the quality of care provided for her.
Mr X wrote to the Council again in October. He asked: if the Council was blaming Mrs Y’s family for the fact it had not contacted them in the “short” time between agreeing the placement in the Care Home and her move there; why the Council had not allowed Mrs Y to manage her own finances and had prevented her from signing forms; if the Council had recorded that putting a bed in the lounge with an old gas fire would have been dangerous; if the Council had recorded when Mr Y had a stairlift installed; for evidence the Council had consulted Mr Y on a regular basis; and what regulation prevented the Council from investigating incidents if Mrs Y’s family did not disclose their identities.
Mr X said the Council’s responses had left Mrs Y’s family feeling angry and responsible for some of the failings.
The Council said it had responded in full to the complaints and reminded Mr X the family could pursue them with the Ombudsman.
Since 2020 the Care Home has improved and is no longer in special measures.
Is there evidence of fault by the Council which caused injustice?
The Council accepts it failed to communicate properly with Mrs Y’s family about her move to residential care in 2019 and to the Care Home in 2020. It has apologised for this fault. It is not clear why the Council said it had not spoken to Mr Y in the short time between agreeing the move to the Care Home and her move there. According to its records, it spoke to him and he told the Council he did not agree with the move. However, there was no other option until the family home could be made safe for Mrs Y.
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.
There is no dispute over the fact that around the time Mrs Y contracted COVID-19 the Care Home was not meeting the fundamental standards. It was not complying with guidance on infection prevention control relating to COVID-19. While it is not possible to say how Mrs Y caught COVID-19, we can say she was at least put at risk of harm by the failure to follow the guidance. She may also have been caused actual harm by that failure. That is fault for which the Council is accountable. This has caused significant distress and justifiable anger to her family.
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 the Care Home and the Council, I have only made recommendations to the Council.
I recommended the Council within four weeks pays Mrs Y’s family £1,500 for avoidable distress and justifiable anger caused to them. The Council has agreed to do this.
Under the terms of our Memorandum of Understanding and information sharing agreement with CQC, I will send it a copy of this statement.
Final decision
I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.
Parts of the complaint I did not investigate I have not investigated the allegation of assault against Mrs Y’s son by someone at the Care Home as this would be a matter for the Police, not the Ombudsman.
Investigator's decision on behalf of the Ombudsman