Summary: Mr X complains his brother’s care home failed to tell him there was COVID-19 in the home, from which his brother died, and the care provider inappropriately contacted him about outstanding fees shortly after his death. The care home should have told Mr X his brother was at the end of his life. The Care Provider should not have contacted him about the outstanding fees. These failings caused avoidable distress which requires a further apology.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains his brother’s care home, which is run by East Anglia Care Homes Limited (the Care Provider), failed to tell them there was COVID-19 in the home, causing avoidable distress.

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The Ombudsman’s role and powers

2. 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. If they have caused an injustice we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
3. 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”.

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X;
• considered the comments and documents the care provider has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• shared a draft of this statement with Mr X and the care provider, and taken account of the comments received.

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What I found

Key facts

5. Mr X’s brother, Mr Y, had dementia. When he left hospital in October 2019, he moved to one of the Care Provider’s care homes as he needed 24-hour care. Although he had enough money to pay for his own care, a council arranged the placement and funded it for four weeks, as no one had the authority to manage his money for him. The council stopped funding the placement on the basis a solicitor, Ms W, would apply to the Court of Protection to be Mr Y’s Deputy for property and affairs. Although she did this, Deputyship was not granted before Mr Y died. Ms W is the executor for Mr Y’s estate.
6. The care home reported a suspected outbreak of COVID-19 to Public Health England on 23 April. It said to isolate symptomatic residents for 14 days. It arranged COVID-19 tests for the three symptomatic residents (which included Mr Y).
7. On 24 April Mr Y tested negative for COVID-19. The other two residents tested positive.
8. By 26 April Mr Y’s family knew he was not well. The care home’s records say he was very confused and not eating or drinking, despite encouragement.
9. On 27 April Mr Y’s fingers, toes arms and legs were turning purple. The care home told Ms W about the change in his condition.
10. It appears from the care home’s records there was no change in Mr Y’s condition on 28 or 29 April.
11. On 30 April Mr Y was “safe and comfortable”. At 12.25 the care home recorded having called Mr X to update him about his brother’s condition. He said he would inform Mr Y’s close friend and another brother. He told the care home Ms W had Mr Y’s will and his body was for cremation. Mr X says the care home told him there was no improvement in his brother’s condition, who had difficulty breathing. He says it gave the impression his condition was stable and he was not in immediate danger. By 19.33 the care home had identified Mr Y as “end of life”.
12. Mr Y died in the early hours of 1 May. The care home left a message for Mr X at 02.30. When he called back it told him his brother had died. Mr X says this came as a great shock.
13. The original death certificate gave the cause of death as vascular dementia, but a revised certificate identified the cause of death as dementia and COVID-19.
14. On 6 May the Care Provider called Mr X and asked him to pay the outstanding fees. Mr X says there was no word of sympathy or condolence. He says the Care Provider repeatedly asked if anyone had power of attorney. Mr X pointed out that the estate was in probate and advised contacting Ms W.
15. Mr X complained to the Care Provider in November 2020. He said:
• the care home had repeatedly denied his brother may have had COVID-19 on the basis he had tested negative;
• it had also denied there were cases of COVID-19 in the care home;
• it had misled him on 30 April by suggesting there was no immediate danger to his brother;
• it should have had a treatment escalation plan in place; and
• he was shocked to receive the telephone call on 6 May.
16. When the Care Provider replied it said:
• the care home had followed all advice from Public Health England;
• it had clarified funeral arrangements with Mr X on 30 April, as Mr Y’s condition was declining;
• at no point had the care home denied having COVID-19 cases in the care home. It had been open and transparent about Mr Y’s test result;
• it apologised if the contact on 6 May appeared insensitive. It said there was confusion over a power of attorney when Ms W asked to have Mr Y’s care records.

Did the care provider’s actions cause injustice?

17. It is not possible for me to say exactly what was said when Mr X spoke to the care home over the telephone. Its records are brief, but there is nothing unusual about that. There were no confirmed cases of COVID-19 in the care home until 24 April. Although the Care Provider denied withholding information about the COVID-19 cases, there is no evidence it shared that information with Mr X. It would have been good practice to do so.
18. The care home told Mr X his brother had tested negative. While that was true, it appears the test may not have been accurate, as the updated death certificate identified COVID-19 as a cause of his death. It appears the care home told Mr X his brother was stable on 30 April. However, it also asked about funeral arrangements and the will, which shows it knew Mr Y may have been approaching the end of his life. It appears the care home did not make this clear to Mr X. It should have done so. If it had, it could have avoided some of the shock Mr Y experienced when his brother died. Given how ill Mr Y was, it seems unlikely he would have been able to speak to Mr X over the telephone on 30 April.
19. The Care Provider was wrong to contact Mr X about the outstanding fees. He had no responsibility for paying them. The Care Provider knew Ms W had Mr Y’s will, so she was the only person to contact to check who the executor was.

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Recommended action

20. I recommended the Care Provider within four weeks writes to Mr X acknowledging and apologising for the faults I have identified. The Care Provider has agreed to do this.
21. Under the terms of our Memorandum of Understanding and information sharing protocol with the Care Quality Commission, I will send it a copy of this statement.

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Final decision

22. I have completed my investigation on the basis the Care Provider’s actions have caused injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman