Summary: Mrs N complained about the actions of Stonehaven Healthcare Ltd in relation to its care of her uncle, Mr X, during the COVID-19 pandemic. The Care Provider was at fault when it gave Mr X notice without first exploring alternative options. This caused Mr X uncertainty about whether the move to a new care home was necessary. The Care Provider has agreed pay Mr X £300 and make service changes. There was no fault in the Care Home’s visiting policy, or the length of time Mr X had to remain in self-isolation following a COVID-19 test.

The complaint

1. Mrs N complains about the actions of Kent House Care Home (owned by Stonehaven Healthcare Ltd) in relation to her uncle, Mr X. In particular, Mrs N complains the Care Home:
1. failed to inform the person who had power of attorney for Mr X of his care charges;
2. introduced visiting restrictions between 24 August and 11 October 2021 that were overly restrictive;
3. caused Mr X nose bleeds when carrying out COVID-19 tests;
4. delayed in obtaining the results of Mr X’s tests;
5. added inappropriate religious messages into cards sent to relatives written by staff on behalf of Mr X;
6. listened in to his phone calls with his family; and
7. failed to inform the family it could no longer meet his needs and used this as an excuse to serve notice on Mr X.
2. Mrs N also complained some of the care workers at the Care Home behaved in a vindictive and cruel manner to Mr X, including telling him he was going to die, and ignoring him.
3. As a result of the above actions, Mrs N says the Care Home has breached Mr X's human rights and was in breach of the Equality Act.

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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 care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
5. 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)
6. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. 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 fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6))

8. If we are satisfied with an organisation’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)
9. 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

10. I spoke to Mrs N and considered her view of her complaint.
11. I made enquiries of the Council and considered the information it provided.
12. I wrote to Mrs N and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The law and government guidance

13. During the COVID-19 pandemic, the government published guidance on visiting care homes which was regularly updated. The guidance in place when the events below took place, included the following:
• where visits took place outside the care home, the visitor should take a lateral flow test (LFT) and receive a negative result in the same way as if they were visiting within the care home;
• in the event of an outbreak of COVID-19, all visiting, other than for exceptional circumstances, should stop.
14. The Care Quality Commission published guidance in 2016 (updated in 2019) about how care homes should deal with visitors whose behaviour might be putting a resident at risk. This states that in these circumstances, the care provider should talk to the visitor who may not know what they are doing might pose a risk. If the behaviour continues, the care provider should assess the level of risk and the impact on the resident. Care providers can also contact the local council’s safeguarding team to provide oversight. Care providers can impose conditions on visiting in these circumstances, but these must be proportionate and kept under review.

What happened

15. Mr X has been a resident at Kent House Care Home (the Care Home) since 2017. He is a self-funder, which means he pays for the full amount of his care.
16. Each year, the Care Home writes to one of Mr X’s family members (Mr B) who has power of attorney for Mr X’s finances, with details of any increases in the amount Mr X must pay for his care.
17. The Care Home’s visiting policy stated visits in the Care Home’s visitor’s room (the conservatory) did not require an LFT because of the precautions that were in place, but visits either outside the Care Home or inside anywhere other than the conservatory, did require an LFT. The Care Home’s visiting policy stated LFTs must be taken onsite. In August, Mr B and the Care Home manager had a number of conversations about visiting and the Care Home’s policy that an LFT must be taken on the day of the visit at the Care Home.
18. Later in August 2021, a telephone conversation took place between Mr B and the Care Home manager. Mr B asked again if, on the days he visited to take Mr X out on a visit, he could take an LFT at home instead of waiting until he got to the Care Home. Mr B said this was because he was anxious about having to enter the Care Home to take the test when he was elderly and therefore considered vulnerable. Mr B said both he and his wife had been double vaccinated. Mr B wanted to take the test at home on the morning of travel and if it was negative, hand it into staff at the gate of the Care Home before Mr X was brought outside.
19. Mr B said that during the call, the Care Home manager told him she would not “waste any more time on this and if you are recording, as I have told you before, I am not stopping you from taking [Mr X] out, but you must have a lateral flow test here in the Care Home”. Later that month, Mr B complained about this to the Care Provider.
20. The Care Provider contacted the Council for advice from its COVID-19 team. The Council responded and said it was reasonable to ask visitors to test on-site but recommended that rather than having a blanket approach, the Care Provider should consider the specific circumstances and potentially make exceptions on a case by case basis.
21. The Care Provider responded to Mr B’s complaint. It stated visitors did not need to enter the Care Home to have an LFT. These took place in the conservatory which had been isolated from the main home by a floor to ceiling screen. The Care Provider explained one staff member, who was tested three times a week, carried out the tests wearing appropriate PPE and the area was disinfected by the worker and a ‘fogging machine’. The Care Provider stated that after Mr B had been helped to carry out several LFTs at the Care Home and staff were satisfied he was carrying them out correctly, it may accept a test taken at home.
22. Three days later, on 22 August, Mr B and other family members met Mr X outside the Care Home. The Care Home had no knowledge of the visit and said no one wore protection clothing or had taken an LFT to their knowledge, and certainly not at the Care Home.
23. On 23 August, there was an outbreak of COVID-19 at the Care Home. The Home went into lockdown until 13 September. During this time, it did not allow visits other than for exceptional circumstances. Visits began again on 14 September.
24. On 14 September, Mrs N and her sister visited Mr X and took him out. They both complied with the Care Home’s visiting requirements that they take an LFT at the Care Home.
25. On 15 September, following a conversation with Mr X, the Care Home realised Mr B had also been present at the visit. This meant Mr X had been in close contact with someone who had not had a negative LFT.
26. The Care Home gave Mr X four weeks’ notice. It gave the reason that there had been a breakdown of trust with the family which meant the Care Home would no longer allow offsite visits. The Care Home said that Mr X benefitted from these visits; therefore, his wellbeing would be affected by this restriction. As a result, the Care Home felt it could no longer meet his needs.
27. On the same day, the Care Home carried out a COVID-19 (PCR) test with Mr X and put him in isolation. The Care Home said results were usually emailed within 72 hours.
28. No result had been received by 19 September, and so the Care Home chased that day and again on 21 September. The Care Home received the results, which were negative, on 24 September and Mr X was able to leave self-isolation. The Care Provider stated Public Health England informed it the delays were occurring because of the increase in positive cases and associated testing across the country.
29. There was a further outbreak at the Care Home on 25 September which meant it went back into lockdown with restricted visiting until 9 October.
30. Mr X moved to a different care home on 11 October.
31. Mrs N complained to the Care Provider over the matters outlined in paragraphs 1 and 2 of this decision statement. She remained unhappy with its response and complained to the Ombudsman.

My findings

Complaint 1a) notification of fee increases

32. The Care Provider has provided copies of the letters sent annually to Mr B who was responsible for Mr X’s finances. These show Mr B was notified of any fee increases. There was no fault in the Care Provider’s actions.

Complaint 1b) visiting restrictions between 24 August and 11 October 2021 that were overly restrictive

33. The Care Home’s visiting policy around testing, isolation and visiting during lockdown were in line with government guidance in place at that time. Mr X did not have any exceptional circumstances, such as being at end of life, which would potentially warrant a deviation from the Care Home’s general policy. There was no fault.

Complaint 1c) nosebleeds, Complaint 1f) phone calls to Mr X’s family and Complaint 2) attitude of staff

34. Mrs N states Mr X was caused pain and distress when staff carried out the LFTs and he was also upset by the attitude of some of the staff towards him. The Care Home states staff were trained in giving the tests which could sometimes cause nosebleeds, and refuted Mrs N’s comments about the attitude of staff.
35. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened. Sometimes, it is not possible to come to a finding, even on the balance of probabilities where there is no independent evidence, and the two sides have differing views on the same events.
36. I cannot know, even on the balance of probabilities, how the tests were carried out, or how some staff behaved towards Mr X. Therefore, I cannot come to a robust finding on these complaints.

Complaint 1d) COVID-19 test results

37. The delays experienced when the Care Home submitted Mr X’s PCR test were out of its control. However, it took appropriate action when it chased for the results. There was no fault in the Care Home’s actions.

Complaint 1e) inappropriate religious messages in cards written by staff on behalf of Mr X

38. Mrs N is unhappy about the message in a card written by a care worker on Mr X’s behalf. However, there is no evidence Mr X is either aware of what was written or that it has caused him upset or offence. Any injustice therefore is not significant enough to justify our involvement. As a result, I will not investigate this matter further.

Complaint 1g) notice to leave the Care Home

39. The Ombudsman is not an appeal body. This means we cannot substitute our decision for one correctly made. We decide this by looking at what the decision-maker took into account when making the decision. We also expect councils and care providers to act proportionally.
40. The Care Home considered the family had breached its visiting policy on two occasions. The evidence supports that view. I also acknowledge that the events took place during the pandemic and care homes needed to be highly cautious to avoid outbreaks of the infection. This required the co-operation of families and other visitors. Furthermore, the Care Home had just come out of one lockdown and would have been particularly anxious to avoid a further outbreak and a second lockdown.
41. The Care Provider concluded the breach of trust was such that Mr X would not be able to have outside visits with family members for a period of time. There was no fault in the Care Provider’s reasoning.
42. However, when care providers take on the responsibility of a care package, they should make the utmost effort to ensure it works. They should not see termination of the contract as a suitable course of action except in the most extreme circumstances.
43. Under these circumstances, we would have expected to see evidence that the Care Provider considered, even if it ultimately rejected, whether there were other, less disruptive, ways of dealing with the challenging situation rather than giving Mr X notice. These could have included discussions with the family, a time limited ban on those who had breached the rules or issuing a ‘final’ warning of the repercussions of any further breaches.
44. We would also have expected to see it considered the risk to Mr X of moving him balanced against the risk to other residents and staff of allowing him to stay. The Care Provider should also have sought Mr X’s views on the situation.
45. The Care Provider’s failure to consider any of the above options before terminating Mr X’s contract was fault.
46. I cannot say for certain what would have happened if the Care Provider had addressed the matter with the family or sought Mr X’s views. However, Mr X is left with uncertainty over whether the move to a new care home was necessary. This injustice is further heightened because there is nothing to demonstrate he was either aware the rules had been breached or encouraged the breaches to take place.

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Agreed actions

47. Within one month of the date of the final decision, the Care Provider has agreed to pay Mr X £300 for the uncertainty caused over whether the move to another care home could have been avoided.
48. Within three months of the date of the final decision, the Care Provider has agreed to ensure it had procedures in place which remind staff they must consider all alternative options before terminating a contract.

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Final decision

49. There was fault leading to injustice. The Care Provider has agreed to my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman