Summary: Mrs X complained about the COVID-19 protocols at her late mother, Mrs M’s, retirement village and the amount of time she received 1:1 care. There was no fault in the arrangements put in place by the Provider to prevent the spread of COVID-19 at the retirement village. The Provider was at fault when it failed to set clear review dates which led to some uncertainty. It has already said it should have reviewed Mrs M's package of care more promptly and waived some of the outstanding fees owed. The Ombudsman could achieve nothing further in the way of a personal remedy. The Provider was at fault when it failed to signpost Mrs X to the Ombudsman at the end of its complaint procedures. We have made service improvements to minimise a reoccurrence of the same faults.

The complaint

1. Mrs X complains the Care Provider:
• inconsistently applied its visiting policy during March and April 2021, which meant her late mother, Mrs M, was discriminated against; and
• provided Mrs M with 1:1 care for a longer period than agreed with the family and without determining if her care needs required it.
2. Mrs X says Mrs M’s estate has been financially affected by what happened.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
4. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. 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 Care Provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
• their personal representative (if they have one), or
• someone we consider to be suitable (Local Government Act 1974, section 26A(2), as amended)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

8. I spoke to Mrs X and considered her view of her complaint.
9. I made enquiries of the Provider and considered the information it provided.
10. I wrote to Mrs X and the Provider with my draft decision and considered their comments before I made my final decision.

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What I found

The Care Quality Commission and the fundamental standards

11. 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.
12. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The CQC has guidance on how to meet these.
13. Regulations 9 and 12 relate to person centred care and safe care and treatment. It includes the following:
• the care and treatment of service users must be appropriate, meet their needs and reflect their preferences; and
• assessments, planning and delivery of care and treatment should respond appropriately and in good time to people's changing needs;

Provider’s COVID-19 guidance on visiting

14. Westward Care Ltd owns a retirement village. The site is not a residential or nursing care facility. However, if a resident needs support and the Provider can meet their identified needs, it will provide the necessary package of care.
15. No specific guidance was issued by the government during the pandemic for retirement villages such as Westward Care. As a result, it decided to take its approach to the management of COVID-19 and visiting from government guidance issued to care homes and supported living and extra care housing.
16. During the pandemic, the Provider closed its communal areas including the lounge and restaurant to family members and entertainers, although they remained open to apartment owners. The Provider also employed a receptionist and maintained a visitor schedule to help minimise risk.
17. However, because it was a retirement village, the Provider was unable to enforce any restrictions on residents leaving the facility and mixing with other people. Where it provided a care package, it was in a stronger position to advise, but again it was not able to force people to comply with the national restrictions put in place by the government or its own procedures.

What happened

18. Mrs M, who has now died, owned an apartment in a Westward Care retirement village. Mrs M had capacity to make all decisions.
19. Mrs M’s care plan indicated she had a history of falls and this was one of the reasons she moved into the facility. An update to her care plan in September 2019 said that she had had around 30 falls in the last nine months.
20. Until 24 March 2021, Mrs M received between 2½ and 3 hours care a week.
21. On 24 March, Mrs M had a fall and was admitted to hospital. She was discharged later that day and, in line with the Provider’s COVID-19 procedures, went into isolation for 14 days.
22. Later on 24 March, Mrs X and Mrs M agreed to 1:1 care, 24 hours a day, with a review of the situation in two days’ time.
23. On 26 March, a number of professionals from the local Council and Health Provider visited Mrs M. They included a community Occupational Therapist who said Mrs M was not safe to be left unattended because her walking was unsteady and she was attempting to move on her own.
24. On the same day, the family and Mrs M agreed to another 48 hours of 1:1 care.
25. On 28 March a virtual meeting was held with the Manager, Mrs M and Mrs X and her siblings. The Manager said they had concerns that the facility could not meet Mrs M’s care needs. Mrs X said she would look for a care home for Mrs M. The daily care notes record the siblings and Mrs M agreed the 1:1 care would continue until the next review. There was no record made of when that review would take place.
26. At that meeting, visiting arrangements were discussed and the family was told they could book the visiting pod or meet Mrs M outside. At this time, Mrs M was still in isolation following her discharge from hospital.
27. On 29 and 30 March the family visited Mrs M. Both visits were outside.
28. On 4 April, the care notes record that after a very early morning call to Mrs X from Mrs M, Mrs X emailed the Manager and expressed concern that the 1:1 carers were not being attentive enough to Mrs M and she was not receiving the quality of care Mrs M was paying for.
29. On 10 April the family visited Mrs M and sat outside her patio window during the visit.
30. On 12 April, Mrs X contacted the Provider and said Mrs M was leaving in a few days as the family had identified a care home.
31. On 14 April, the family met with the Provider. The Provider said it now thought it could meet Mrs M’s needs and it agreed to draw up an action plan to mitigate the risk of falls. In addition, a Multi-Disciplinary Team from the local Health Service and Council would meet with the Provider, Mrs M and the family to discuss Mrs M’s future care needs. Mrs M had previously had a sensor mat which had proved unsuccessful. However, it was agreed to reintroduce this. Mrs M’s 1:1 care stopped that day.
32. Mrs M was advised at the time that she should not attempt to mobilise or manoeuvre by herself but to call for help with her buzzer. On 15 April Mrs M tried to move without help and fell. After this, the care notes record Mrs M used her buzzer whenever she needed to move until 30 April when she tried on her own again and fell for a second time. Later the same day, Mrs M moved into a care home.

Mrs X’s complaint to the Provider

33. In July 2021, Mrs X complained to the Provider over inconsistencies in the COVID-19 protocols and the length of time Mrs M received 1:1 care. Mrs X raised concerns about a particular resident (Resident G) who she said had left the village a number of times in March and April 2021.
34. The Provider responded in August, and made the following comments:
• when Resident G visited pubs and cafes, they sat outside, never used public transport and followed the Provider’s infection prevention measures. But in any case, it would have been unable to take enforcement action even if Resident G had not done so;
• visiting on the premises remained controlled and families had to book the visiting pod or sit outside;
• the family and Mrs M were happy to start the 1:1 care and at the review on 28 March, it was agreed this would continue until the next review. A staff member present recalled the family made a comment to the effect that because Mrs M was happy to continue the care, it would stay as it was as she was soon going to move to a care home; and
• the family made no request for a review of the 1:1 care following the meeting on 28 March and remained aware Mrs M was still receiving the care through phone calls during the period. However, if a review had been carried out earlier, it is likely this would have found Mrs M did not need 1:1 care and support two weeks after leaving hospital. As a result, the Provider said it would only charge Mrs M for the first two weeks of her 1:1 care.
35. Mrs X responded to the Provider and said:
• there had been breaches of both national guidance and the Provider’s own protocols. For example, Resident G had sat at Mrs M’s table at mealtimes which was closer than 2 metres;
• the Provider told Mrs X she could not take Mrs M out for any social outing because external visits were limited to medical ones;
• she believed Mrs M had been discriminated against because she was a wheelchair user and Resident G was able to leave of their own volition; and
• the Provider had not been able to show any formal authorisation of the 1:1 care.
36. The Provider’s legal representatives wrote to Mrs X in December 2021 about her complaints. It reiterated the points made by the Provider and asked her to pay Mrs M’s outstanding fees for the 1:1 care package.
37. Mrs X complained to the Ombudsman.

My findings

Visiting protocols

38. The Provider had a mix of residents in its facility, some received a care package whilst others did not. All of them were able to leave the premises when they wished and the Provider had no power to prevent this, whether or not residents were in breach of the Provider’s or national guidance.
39. The Provider was able to exercise a greater degree of control over visitors to the facility which it did through asking residents to book the visiting pod or to meet outside. Residents were also expected to isolate after discharge from hospital. Very few sanctions, however, would have been available to the Provider if these had been breached.
40. Mrs X believes Mrs M was discriminated against because she was a wheelchair user. However, there was nothing to physically prevent the family from taking Mrs M out for social activities. It may have impacted on whether the Provider of Mrs M’s 1:1 care was comfortable to still support Mrs M but that is a different matter and, in any case, is speculative. There was no fault in the Provider’s actions.

1:1 care

41. Although there was no written approval of the agreement to 1:1 care, it was implicit that it had been agreed.
42. There is no dispute that Mrs M and the family agreed to 1:1 care for the five day period 24 – 28 March inclusive.
43. At the meeting on 28 March, everyone was again in agreement that 1:1 care would continue ‘until the next review’. At this point, and because it was unlikely such an expensive and intensive care package could continue indefinitely, the Provider should have either set a review date, or agreed the triggers that would prompt the review. The Provider should also have discussed other options to keep Mrs M safe, such as reintroducing sensor mats. The Provider’s failure to do so is fault. And because this did not take place, some uncertainty was introduced into the proceedings.
44. However, Mrs X was aware that the 1:1 package was continuing and took no steps to either request the package stop or to request a review. In addition, Mrs M benefitted from the care because her falls stopped when the package began.
45. Following Mrs X’s complaint, the Provider reviewed its actions and decided it should have carried out a review sooner than it did. As a result, it said it would only charge Mrs M for the first 14 days of the 1:1 care package and it would waive the subsequent 7 days’ care. The Ombudsman could achieve nothing more than the remedy the Provider has already offered.

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Agreed actions

46. Within one month of the date of the final decision the Care Provider has agreed to ensure its procedures specify that:
1. where temporary packages of care are put in place, clear review dates or triggers for reviews are set; and
2. complainants are signposted to the Ombudsman at the end of the complaint process.

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Final decision

47. I have completed my investigation. There was fault leading to injustice for which the Provider has already provided a remedy. I have made a service request to minimise a reoccurrence of the fault I identified.

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Investigator's decision on behalf of the Ombudsman