• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Final decision

The Ombudsman's final decision:

Summary: Mrs X complains about a lack of communication from the Burlington Nursing Home, where the Council had placed her father, causing unnecessary distress, and a failure to recognise he was approaching the end of his life, which meant his family could not spend time with him before he died. Burlington has apologised for not contacting Mrs X after her father’s death to pass on condolences. There is no evidence of fault which warrants a further remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains about:
   • a lack of communication from the Burlington Nursing Home (“Burlington”), where the Council had placed her father, causing unnecessary distress; and
   • a failure to recognise he was approaching the end of his life, which meant his family could not spend time with him before he died.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
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 and care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
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)

Back to top

How I considered this complaint

6. I have:
   • considered the complaint and the documents provided by Mrs X;
   • discussed the complaint with Mrs X;
   • considered the comments and documents the Council has provided;
   • considered the Ombudsman’s guidance on remedies; and
   • shared a draft of this statement with Mrs X and the Council, and invited comments for me to consider before making my final decision.

Back to top

What I found

7. The Government issued guidance on Visiting care homes during COVID-19 on 19 December 2020. Except in the event of an active outbreak, this encouraged:
   • outdoor visits and “screened” visits regardless of Tier;
   • indoor visits to care homes in Tiers 1 to 3, provided the visitor had a negative test result.

Each area of the country was allocated to one of three Tiers based on the threat of COVID-19 (Tier 1 had the lowest threat and Tier 3 the highest and consequently the greater restrictions).

8. The guidance also said: “Visits in exceptional circumstances including end of life should always be enabled, in all tiers”. The guidance left individual care homes to make their own decisions based on dynamic risk assessments and advice from local Directors of Public Health.
9. The Government updated its guidance on 12 January to take account of the national restrictions (lockdown) which began on 6 January. The guidance said all care homes, except in the event of an active outbreak, should:
   • seek to enable outdoor visiting and “screened” visits; and
   • always enable visits in exceptional circumstances, including end of life.
10. In the event of an outbreak, the guidance said care homes should immediately stop visiting (except in exceptional circumstances such as end of life). It said:
    • “Visits in exceptional circumstances such as end of life should always be supported and enabled. Families and residents should be supported to plan end of life visiting more deliberately, with the assumption that visiting will be enabled to happen not just towards the very end of life.”
11. However, the guidance left individual decisions on visits to care homes, based on dynamic risk assessments and advice from local Directors of Public Health.

What happened

12. Mrs X’s father, Mr Y, had dementia. He moved to Burlington on 23 December 2020 when he left hospital after having COVID-19. This was a temporary placement so decisions could be made about his long-term needs. Mr Y was isolated from other residents for 14 days.
13. On 2 January 2021 Mr Y developed a chest infection, for which a GP prescribed antibiotics. Burlington agreed visits under exceptional circumstances.
14. By 6 January Mr Y’s condition had improved. As 14 days had passed since his admission, he was no longer isolated from other residents. Burlington stopped the exceptional visits for his family.
15. On 7 January Burlington suspended visits after a member of staff tested positive for COVID-19 during routine testing and pending receipt of other results. It told Mr Y’s family about this.
16. On 14 January Burlington recorded three positive test results for COVID-19. It closed to visitors in all but exceptional circumstances. Burlington updated Mr Y’s family. It noted the situation would be reviewed if he showed signs of clinical deterioration.
17. On 28 January Public Health England told Burlington it should remain closed to visitors and new admissions for 28 days from the date of the last positive PCR test, which was 25 January.
18. On 1 February Burlington checked Mr Y as he had been coughing and was tired. His temperature, blood pressure and oxygen levels were all within normal limits.
19. The Council spoke to a Nurse at Burlington on 3 February, who said they were filling in an application for NHS Continuing Healthcare as Mr Y was at the end of his life. The Nurse said Mr Y:
    • had very poor food and fluid intake (six spoons of liquidised food and 500-700 mls of thickened fluids a day);
    • had lost 11 kg in the past month;
    • was at high risk of pressure damage to his skin;
    • only opened his bowels every two to three days; and
    • did not need a pad change overnight as he drank so little.
20. The Council e-mailed the Manager to check Burlington was applying for full NHS Continuing Healthcare (which would have paid all Mr Y’s care fees) because he was at the end of his life.
21. When replying in the morning of 4 February, the Manager said they were applying for NHS Funded Nursing Care, as Mr Y did not fulfil the criteria for a fast‑track application for full NHS Continuing Healthcare. The Manager said Mr Y had only been eating small amounts for several weeks and he “was much the same as he was then”. The Manager said they were looking at “weeks/short months due to his frailty”. Later in the morning, the Council spoke to Mr Y’s family about the choices for meeting his needs. They discussed employing a live-in carer so he could return home, moving him to another care home or leaving him at Burlington. His family said their main concern about staying at Burlington was the fact they could not visit. The Council agreed to speak to Burlington. It noted that unless Burlington had an outbreak of COVID-19 it should be facilitating visits to all residents, regardless of whether they were at the end of their life or not.
22. On 5 February Mr Y ate very little and drank small amounts.
23. Mrs X had a video call with Mr Y on 6 February. She was concerned about how poorly he looked and that he was coughing. Burlington checked Mr Y and his temperature (36.9 C), blood pressure (110/55) and oxygen levels (95%) were not concerning.
24. At 17.10 Mr Y’s temperature was 38.3 C (higher than normal) and oxygen level was 87% (low). Burlington contacted a GP who prescribed antibiotics for a possible chest infection. Burlington told Mrs X at 17.52. She asked about visiting and was told the Manager would have to make that decision. Burlington called Mrs X and said the Manager agreed two members of the family could visit for an hour every day, provided they wore full personal protective equipment and did not touch Mr Y. Mrs X said she would visit at 20.00.
25. At 18.05 Burlington offered Mr Y some squash and he drank 50ml. At 19.35 Burlington found Mr Y was not responsive on a routine check. It checked again after 10 minutes but there was still no response, as Mr Y had died. It called Mr Y’s family at 19.45. They arrived at 20.00, as already arranged.
26. When Burlington responded to Mrs X’s complaint on 28 April it said:
    • visits to care homes were suspended when the country went into lockdown in December 2020;
    • the only exception was visits to people in the last days of their life; and
    • it apologised no one contacted Mrs X after her father’s death and put this down to “unprecedented times”.
27. According to Burlington’s records, Mr Y’s food and fluid intake between 24 January and 6 February was:

	Fluid mls	Breakfast	Lunch (main / pudding)	Supper (main / pudding)
24 Jan	930	2 mouthfuls	15 teaspoons	50%
25 Jan	1050	Nothing	3 spoonsful / 50%	25%
26 Jan	1130	3 mouthfuls	25% / nothing	25%
27 Jan	650	3 teaspoons	25% / 10 spoonsful	25%
28 Jan	1275	1 mouthful	6 teaspoons	25%
29 Jan	1100	75%	50% / 75%	25% / declined
30 Jan	1380	2 teaspoons	5 teaspoons	4 teaspoons
31 Jan	1250	2 teaspoons	5 teaspoons	2 spoonsful
1 Feb	1135	2 mouthfuls	4 teaspoons	3 mouthfuls
2 Feb	1110	25%	2 teaspoons / 2 tablespoons	2 sips
3 Feb	725	Nothing	5 teaspoons	Assisted
4 Feb	1110	2 teaspoons	4 teaspoons	2 teaspoons / 2 tablespoons
5 Feb	795	1 spoonful	7 teaspoons	Nothing
6 Feb	1150	25%	Nothing	Nothing

Is there evidence of fault by the Council which caused injustice?

28. Burlington was not at fault for stopping the exceptional visits in January. Mr Y’s condition had stabilised and he was no longer considered at the end of his life. Shortly after that there were cases of COVID-19, which meant all but exceptional visits had to be suspended. Burlington told Mr Y’s family it would review the position on visiting if he “showed signs of clinical deterioration”. Mr Y’s food and fluid intake remained low but there was no clinical deterioration until 6 February. Burlington told Mr Y’s family but he died before they could see him. While that was an injustice, it was not down to fault. It is only with hindsight that we can say the Manager’s view on how long Mr Y might live was wrong.

Back to top

Final decision

29. I have completed my investigation on the basis that there has been no fault which warrants a further remedy.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page