The Ombudsman's final decision
Summary: We will not investigate this complaint about events surrounding Mr X’s death from COVID-19. Part of the complaint is late. It is unlikely we could reach a clear enough view there was fault by, or on behalf of, the Council that would have significantly changed what happened. We cannot achieve what Ms X wants about assigning responsibility for Mr X’s death.
The complaint
Ms X complains a residential care provider (acting on the Council’s behalf) did not act properly in terms of looking after her father, Mr X, and testing him for COVID-19. Sadly, Mr X died from COVID-19. Ms X reports other residents of the care home also died of COVID-19. Ms X says she suffered distress. She is also dissatisfied with a demand to pay Mr X’s contribution to his residential care fees for the time in question.
The Ombudsman’s role and powers
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 or 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) Here, at the time of the events complained of, the Council had ultimate responsibility for Mr X’s social care. Therefore we treat the Care Provider as acting on the Council’s behalf.
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6)) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Complaint about care home’s actions We cannot now put right any impact those actions had on Mr X. So the possible impact on Mr X is not a reason for us to investigate the complaint. Separate to any impact on Mr X, I appreciate Ms X is distressed about events around her father’s death, so I have considered if there are grounds to investigate.
Ms X knew in January 2021 she was dissatisfied about events around her father’s death. She did not complain to us until June 2022. Ms X said the thought she had contacted us earlier, in 2021. I have seen no evidence of that, nor do our records show that. This part of the complaint is therefore late and the restriction in paragraph 5 applies. Ms X says she felt unable to pursue the matter with us before June 2022. I appreciate the bereavement was very difficult and could have caused some delay in Ms X complaining to us. However, I note Ms X complained to the Care Provider in January 2021, receiving a response in March 2021. In September 2021 she told the Care Provider she had complained to the Care Quality Commission and she would ‘…now take it up with the local ombudsman.’ The Care Provider’s final response in November 2021 also said Ms X could now complain to the Ombudsman. Yet there was no complaint to us for a further six months. While I accept the bereavement had some impact, in the circumstances I consider Ms X could reasonably have complained to us sooner. I am not persuaded to accept the complaint late.
Even if this part of the complaint was not late, or if there was good reason to accept it late, there are other reasons we should not investigate.
Ms X says the care home missed several opportunities to test Mr X for COVID-19. The Care Provider disagrees. Ms X argues such tests would probably have given a positive result sooner, Mr X would have had more chance of survival and the spread of COVID-19 to others in the care home could have been prevented. Any investigation by us would not be able to reach a clear enough view, on balance, about any of those points, which are all necessarily speculative.
Nor could we reach a clear enough view, on balance, on how Mr X caught COVID-19 and whether that was due to fault by the Care Provider on behalf of the Council. The rules and guidance about COVID-19 precautions in care homes aimed to reduce the risk of infection but could not remove that risk. In the days before testing positive, Mr X had been in hospital as well as in the care home. Ms X’s argument that the Care Provider did not do all it could to prevent infection seems speculative. The only specific allegation is that the care home was using personal protective equipment (PPE) differently to the hospital. However, the care home did not have to act like a hospital on this. Government guidance for hospitals and care homes was different. It is unlikely we could reach a clear enough view that there was at fault here, let alone link any such fault to Mr X, or anyone else in the home, catching COVID-19.
Ms X wants the Care Provider to admit some responsibility for Mr X’s death. We would not be able to say that, for reasons above. Nor is it the Ombudsman’s role to attribute blame for a death. That is for the coroner and the courts. So we cannot achieve what Ms X wants here.
Complaint about Council demanding payment I understand the Council is still seeking payment of the contribution it said Mr X should pay towards his care home costs for the period in question. Therefore this part of the complaint is not late.
Ms X argues Mr X’s estate should not have to pay because she says Mr X was not properly looked after for the period in question. As explained above, we will not be able to reach a clear enough view whether Mr X was properly looked after, let alone whether any fault adversely affected him. So, in terms of the current complaint to us, I cannot say the Council is at fault for wanting payment of Mr X’s contribution to the care costs.
Ms X recently told me there is not enough money in the estate to pay the charges. That should not normally be the case, because the Council should only demand payment after a financial assessment of Mr X’s circumstances at the time. This is a new point. I have not seen evidence it was put to the Council as a formal complaint. If Ms X thinks the Council is asking for too much, she can raise any concerns about the financial assessment with the Council in the first instance.
Final decision
We will not investigate Ms X’s complaint because: part of the complaint is late; it is unlikely we could reach a clear enough view that there was fault by, or on behalf of the Council that would have significantly changed what happened; and we cannot achieve what Ms X wants in terms of attributing responsibility for Mr X’s death.
Investigator's decision on behalf of the Ombudsman