Summary: There was no fault in the Care Provider’s actions when it suspended visiting following an outbreak of COVID-19 at the care home where Mr X’s mother resides. There was also no fault in the way the Council supported Mr X in his efforts to visit his mother.

The complaint

1. Mr X complains the Care Provider failed to act in line with Government guidance when it suspended visiting across following an outbreak of COVID-19 at the Care Home where his mother, Mrs M, resides. Mr X says Mrs M was at end of life at this time and the family should have been allowed to continue visiting her.
2. Mr X also complains:
• the Care Provider wrongly informed him that it was acting on orders from the Council when it suspended visiting at the Care Home. Mr X says the Council denies telling the Care Provider this; and
• the Council social worker failed to act in Mrs M’s best interests when they did not support her family in its attempts to visit her during the period October 2020 to February 2021. They say the Council held a review meeting where it decided Mrs M was not end of life but failed to invite a family representative.
3. Mr X says his mother’s health and wellbeing has been adversely affected and he and other family members have been caused unnecessary distress and frustration. He believes Mrs M’s and the family’s human rights have been breached.

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The Ombudsman’s role and powers

4. 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 followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. Part 3A covers complaints about care bought directly from a care provider by the person who needs it or by a representative, and includes care funded privately or with direct payments under a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
7. In this case the Council arranged the care. Therefore, we will treat the actions of the Care Provider, and if we identify any fault, any related consequences or recommendations will be the responsibility of the Council.
8. 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, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

9. I spoke to Mr X and considered his view of his complaint.
10. I made enquiries of the Council and considered the information it provided. This included Mrs M’s risk assessments, the Council’s daily records for Mrs M, correspondence between the Care Provider and Mr X, letters from the local Director of Public Health to care home managers on visiting, guidance from Public Health England and complaints correspondence.
11. I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Law and guidance

Update on policies for visiting arrangements in care homes

12. The period covered by this complaint (the end of October 2020 to February 2021), was the subject of five Government updates on visiting arrangements. All Government guidance was clear that decisions were to be made by individual care homes based on their own circumstances.
13. The Government update on 15 October 2020 stated “In the event of an outbreak in a care home…, care homes should rapidly impose visiting restrictions to protect vulnerable residents, staff and visitors… Any imposed visitor restrictions should have regard to exceptional circumstances such as end of life”. The guidance did not state what the restrictions should be, nor give a definition of what the guidance meant by ‘end of life’.
14. The Government update on 5 November 2020 clarified what was meant by ‘visiting restrictions’, stating “In the event of an outbreak in a care home, the home should rapidly move to stop visiting (except in exceptional circumstances such as end of life) to protect vulnerable residents, staff and visitors”.
15. Subsequent updates on visiting arrangements repeated the November 2020 guidance.
16. The Government update on 1 December 2020 clarified what the guidance meant by ‘end of life’. This stated “End of life care (for residents in care homes) means early identification of those who are in their last year of life and offering them the support to live as well as possible and to then die with dignity. NHS guidance… on end of life care is available to support this process”.
17. The NHS advice cited above stated “People are considered to be approaching the end of life when they are likely to die within the next 12 months, although this is not always possible to predict. This includes people whose death is imminent, as well as people who… have an advanced incurable illness, such as… dementia”.

Human Rights Act 1998

18. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to including respect for private and family life.
19. The Act requires all local authorities - and other bodies carrying out public functions to respect and protect individuals’ rights.
20. Our 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 we can decide 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.
21. In practical terms, councils will often be able to show they have complied with the Human Rights Act if they can:
• show they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.

What happened

22. Mr X’s mother, Mrs M, has been a resident at Hawthorns Care Home for around 15 years. She is in her late 90s and has dementia. She cannot leave her bed, is unable to communicate, and is visually impaired.
23. During the initial period of the COVID-19 pandemic, the Care Home allowed weekly window visits. These are when the visitor remains outside but can see and speak to their relative through the window.
24. At the end of October, after the Care Home reported an incident of COVID-19, Public Health England (PHE) stated it was facing an outbreak and should cease all forms of visiting, including the window visiting arrangements the Care Home had in place. PHE stated these temporary restrictions could be lifted 28 days from the onset of last symptoms or a positive test. Further incidences meant the temporary arrangements remained in place for the following months.
25. Mr X complained to the Care Provider which owns the Care Home on 8 October and 15 November about the matters outlined in paragraph 1. He felt the Care Provider had applied a blanket policy when it stopped all visiting and its actions were not in line with the Government guidance. Mr X believed his mother was at end of life and so fell into the ‘exceptional circumstances’ specified in the guidance.
26. The Care Provider responded to Mr X’s complaint at the end of January 2021 and said “I must confirm that this is not [our] decision [to not lift the visiting restrictions], and we must comply with the instruction of our local authority… they remain that the risk is too high to allow any form of visiting and the complete restrictions will remain in place until 5th February, at which point it will be reviewed”.
27. In relation to Mr X’s contention that Mrs M was at end of life, the Care Provider stated “We understand that given your mother’s age, she could be classified as end of life… Hawthorns have confirmed your mother’s condition remains stable, and the home has been undertaking monthly risk assessments in respect to both physical and mental wellbeing… From reviewing her monthly documentation and the GP’s assessment there were no cause for concern nor any significant changes noted”.
28. On 12 January, Mr X contacted the Adult Social Care Team to ask for help because he was still unable to visit Mrs M. A social worker contacted the Care Home the following day and the manager stated there was an active outbreak of COVID-19 in the Home. The social worker discussed whether Mrs M was at end of life and the manager stated she was not. The social worker advised Mr X they would contact Mrs M’s GP to discuss the matter further.
29. The social worker spoke to the GP on 19 January. He advised that whilst Mrs M was at the end stage of dementia, her physical health was stable. The GP was not of the view that Mrs M met the criteria for families visiting residents who were ‘end of life’ in a care home during a COVID-19 outbreak.
30. Shortly afterwards, the Care Provider wrote to Mr X and said the Care Home continued to carry out monthly assessments of Mrs M who remained mentally and physically stable. The Care Provider stated the Care Home would contact Mr X if the situation changed but that it had a duty to protect everyone within the home as much as possible and to be fair to other families in a similar situation. The Care Provider confirmed visiting would not restart at that stage.
31. On 8 February, Mr X told the Council that the GP had identified Mrs M as being in her last year of life. The GP went on to state “I can confirm that she is palliative (and is on our Palliative Care Register…), in the sense that she has advanced dementia and higher than 50% chance that she would die in the next 12 months, but she is not actively dying and not expected to in the next few months”.
32. On 10 February the social worker contacted the manager of the Care Home. She stated she was aware of the Government guidance but if the definition of end of life was applied, this would mean around 60% of their residents were end of life and the risk was too great whilst there was a COVID-19 outbreak at the Home.
33. On 11 February, the Care Provider decided to arrange “exceptional weekly bedroom visits” for Mrs M.
34. In response to my enquiries, the Care Provider stated it had mistakenly said it was following guidance from the Council when in fact it should have said Public Health England. It apologised for any confusion. It said it contacted PHE each time there was a new positive case and it was advised there should be no visiting for 28 days from the date of the new case.

My findings

Visits to Mrs M between October 2020 and February 2021

35. When the Care Home experienced an outbreak of COVID-19 in October 2020, it stopped all visits. Mr X believed he should be allowed face-to-face visits with Mrs M because dementia is a life limiting illness. This is because the Government guidance during the relevant time period cited residents who were at the end of life should be considered as exceptional cases.
36. The guidance for residential care homes published by the Government during the pandemic, made it clear that ultimately, it was for care homes to decide what visiting arrangements to put in place having regard to the guidance, PHE, any advice from the local Director of Public Health and local circumstances. In doing so, care homes would be expected to weigh up the risks and benefits to an individual resident of receiving visits, in relation to keeping the other residents and staff safe. The fact that a resident was in their last year of life, or had dementia, did not mean that there was an automatic right to visits.
37. In this case, the Care Home stopped all visits when there was an outbreak of COVID-19. It kept the situation under review via monthly assessments of Mrs M’s mental and physical wellbeing. The Care Home did not consider Mrs M was at the end of her life and this view was supported by the GP. In February 2021, when the GP’s professional view changed and he stated Mrs M was likely to be in her last year of life, the Care Home reviewed its earlier decision and allowed visits. Equally, it could still have decided not to reintroduce visits if it believed the risk to the safety of Mrs M, other residents and staff was too great. There was no fault in the Care Home’s actions.

The Council social worker failed to act in Mrs M’s best interests over visiting

38. The case notes demonstrate the social worker liaised appropriately with the Care Home and Mrs M’s GP when Mr X contacted them over visiting arrangements. It was not for the social worker to decide what visiting arrangements should be in place; that was for the Care Home manager to decide. There was no fault in the Council’s actions.

Care Provider wrongly informed Mr X that it was acting on orders from the Council when it suspended visiting at the Care Home

39. The Ombudsman provides 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 any injustice is not significant enough to justify our involvement.
40. I will not investigate this matter. Mistakenly telling Mr X that public health orders came from the Council and not PHE would not be sufficient to amount to maladministration, nor would it cause a significant injustice to him. And in any case, the Care Provider has apologised for the mistake and I could achieve nothing further.

Alleged breach of human rights

41. The case notes and Mrs M’s risk assessments evidence the Council and Care Home had regard to the impact and effect the decision to stop visiting would have on Mrs M and her family. Mr X was able to challenge the Care Home’s decision via a number of routes. This demonstrates due regard was given to the family’s human rights. There was no fault.

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Final decision

42. I have completed my investigation. There was no fault.

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Investigator's decision on behalf of the Ombudsman