Summary: There was fault in Mrs Z’s care in a care home. Staff did not act in line with COVID-19 guidance and record keeping and communication was not in line with accepted standards. The Council will apologise and take action described in this statement.

The complaint

1. Mrs X and Ms Y complained about their late mother Mrs Z’s care in Pilgrims View Care Home, Snodland (the Care Home) in December 2020. Avante Care and Support (the Care Provider) owns the Care Home. Kent County Council (the Council) arranged and funded Mrs Z’s care.
2. Mrs X and Ms Y complained:
1. The Care Home did not test Mrs Z for COVID-19 before she moved in. They were allowed into the Care Home on her first day. Mrs Z mixed freely with other residents
2. Just after Mrs Z moved in, there was a case of COVID-19 in the Care Home. The Care Home tested everyone, but they never received the results
3. Communication was poor: in particular, Mrs Z had no key worker, staff did not update them on how Mrs Z was settling in
4. They were not told Mrs Z was unwell and the Care Home did not seek timely support from the GP.
5. The Council’s response was inadequate.
3. Mrs X and Ms Y said the fault caused them avoidable distress. They would like a proper acknowledgement of the failings in Mrs Z’s care.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)
7. 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 councils and care providers followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19.”

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How I considered this complaint

8. I considered:
• The complaint to us and the Council’s responses
• Records from the Care Home and Council described below
9. Mrs X, Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) issued guidance in March 2015 on meeting the regulations (the Fundamental Standards.) The Ombudsman considers the 2014 Regulations and the Fundamental Standards when determining complaints about poor standards of care.
11. Regulation 17 of the 2014 Regulations requires a care provider to keep accurate, complete and contemporaneous records of care and treatment.
12. Regulation 12 of the 2014 Regulations says care must be provided in a safe way including assessing risks to the safety of people using the service and doing all that is reasonably practicable to mitigate risks.
13. Admission and Care of Residents in a Care Home during COVID-19, September 2020 was government guidance for care providers. It said:
• The care home manager should ensure the person had a negative PCR test within two days of admission and that the person had not been in close contact with someone with COVID-19 symptoms within the last 14 days.
• If a test had not been conducted within two days before admission, another test should be conducted. A 14-day isolation period was still recommended, even where a result is negative; particularly in care homes for older residents.
14. Visiting care homes during COVID-19, 2 December 2020 was government guidance. It was published in anticipation that twice weekly testing of visitors to care homes being in place (the government was in the process of rolling out testing kits for care homes to use and it expected enough kits to be available before Christmas). The guidance said that visitors should be screened for symptoms by staff asking a series of questions on arrival.

What happened

15. Mrs Z had dementia. She moved into the Care Home on 15 December 2020. She had been living alone previously, with support from her daughters and home care workers. A case manager from the Council completed a social care assessment which concluded she required care in a care home for her safety.
16. Mrs X and Ms Y told us they accompanied their mother to the Care Home, no-one asked them about a negative test for Mrs Z and when they queried this, staff said they would take their word for it. They also told us they went into Mrs Z’s room without being questioned about if they had any symptoms or whether they had a test and they were asked if they wanted to go into the lounge to say goodbye, but said no. They also said when entering the Care Home, they walked past other residents and they were in contact with three members of staff when in Mrs Z’s room.
17. There was an outbreak of COVID-19 in the Care Home shortly after Mrs Z moved in. Mrs X told us all residents had been tested and the manager admitted she had sent the tests to the wrong address and the tests ended up being destroyed.
18. The Care Home drew up care plans describing Mrs Z’s needs. There are no records of any communication with the family and no records of liaison with health professionals other than the call to 111 described later in this statement.
19. The Care Home kept daily records of the care it provided. The records indicated Mrs Z was settled for the first 10 days of her stay and there were no concerns noted. She ate and drank well.
20. Mrs Z ate and drank little after Christmas day, she often remained in bed or went back to bed. She complained of pain, being hot and cold. Staff took her temperature several times and it was within a normal range. She was noted to be chesty and coughing. On 2 January, Mrs Z remained in bed unwell with the same presentation. She winced when swallowing. In the evening, a care worker noticed her face was swollen. Staff called 111 which called an ambulance. She was taken to hospital. She died in hospital within a week. We understand the death certificate recorded Mrs Z had COVID-19.
21. The Care Provider’s response to the complaint said:
• It was sorry she felt her mother’s care was inadequate
• It was not company policy to seek evidence of a negative test on admission. Testing pre-admission was mandatory. It had changed procedures to say that all new residents and any relative accompanying them had to provide a negative test and this would be recorded.
• Records of contact with the family were poor, this was due to staff shortages. They had to call the home several times to get updates and this was not acceptable.
• Mrs Z did have a key worker, but this did not work well because the member of staff was absent.
• There was a team of critical care nurses supporting the Care Home daily during the outbreak of COVID-19 in the home. They assessed Mrs Z and decided input from them was not necessary. Mrs Z had been tested for COVID-19, but the results had not come back. She was due to see the GP on 4 January. As her symptoms were not severe, medical assistance was not sought. She had paracetamol for pain relief.
• On 2 January, Mrs Z was complaining of pain in the area where her mouth was swollen. She was also not eating, taking only minimal fluids and was sleepy. Staff contacted 111 for advice and they called an ambulance.
• The family called the Care Home daily, but staff did not call them. It accepted communication was poor.
22. Unhappy with the Care Home’s response, Mrs X and Ms Y contacted the Council. It said it was happy the Care Home had given a full response to the issues raised and the Care Home had reduced the fees.

Was there fault?

Complaint a: The Care Home did not test Mrs Z for COVID-19 before she moved in. They were allowed into the Care Home on her first day. Mrs Z mixed freely with other residents

23. There was fault because:
• Guidance in force at the time required the Care Home’s manager to be satisfied that Mrs Z had a negative test within two days. ‘Taking her daughters’ word for it’ was not sufficient.
• Mrs Z mixed with other residents, which was against the recommendation that she self-isolated for the first 14 days of her stay. I note Mrs Z was mobile and had dementia and so self-isolation may not have been practical. But, there was no evidence in the records that it was even contemplated.
• Staff did not ask any screening questions of Mrs X or Ms Y before allowing them into the building.
• Staff allowed Mrs X and Ms Y to have contact with other residents
24. My view is the Care Home did not do all that was reasonably practicable to mitigate risks. So care was not in line with Regulation 12 of the 2014 Regulations.

Complaint b: Just after Mrs Z moved in, there was a case of COVID-19 in the Care Home. The Care Home tested everyone, but they never received the results.

25. The NHS was responsible for providing test results and not the Care Home. The complainants alleged the Manager sent the tests to the wrong address. I have no evidence to confirm this, but even if there was evidence, my view is this was an error and not fault.

Complaint c: Communication was poor: in particular Mrs Z had no key worker, staff did not update them on how Mrs X was settling in

26. The Care Home accepted poor communication with the family in its complaint response. This was fault.

Complaint d: They were not told Mrs Z was unwell and the Care Home did not seek timely support from the GP.

27. The Care Provider said in the complaint response that it had support from NHS critical care nurses during the outbreak, those nurses had assessed Mrs Z and said she did not require further medical assistance. I would expect the nurses to have kept their own separate records, but I would also expect the Care Home’s staff to have recorded in Mrs Z’s care records what advice was sought from the nurses and when. This was poor record keeping and not in line with Regulation 17 of the 2014 Regulations. This was fault.

Complaint e: The Council’s response was inadequate.

28. The Care Home’s apology was not an appropriate way to express findings that care was faulty. There was no admission of failings. The Council’s response should have identified the faults in care I have identified and provided a genuine apology.

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Agreed action

29. I found fault by the Care Provider, which acted for the Council. This caused Mrs X and Ms Y avoidable distress.
30. 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 Care Provider, I have made recommendations to the Council.
31. The Council will apologise for the faults in Mrs Z’s care within one month.
32. Within two months, the Council will:
• Ensure the Care Provider’s policies and procedures with regard to COVID-19 testing and visiting are updated according to current government guidance
• Ensure the Care Provider reminds staff in the Care Home of the importance of maintaining accurate and complete records of liaison with health professionals.
33. It is not appropriate for me to recommend a financial remedy for Mrs X and Ms Y’s distress, because there has already been a waiver of some of the fees.

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Final decision

34. There was fault in Mrs Z’s care in a care home. Staff did not act in line with COVID-19 guidance and record keeping and communication was not in line with accepted standards. The Council will apologise and take action described in this statement. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman