Summary: Mrs X complained about the visiting arrangements Calsa Care Ltd had in place during the COVID-19 pandemic, its refusal to award her essential care giver status and its decision to give her mother, Mrs M, notice. She also complained about the care Mrs M received at the end of her life. The care provider was at fault for poor record-keeping although it is not possible to determine if this caused Mrs X or Mrs M personal injustice. It has agreed to make service improvements to prevent a reoccurrence.

The complaint

1. Mrs X complains the care home:
• failed to ensure her mother, Mrs M, had the same opportunities to see her family as other residents who were more mobile;
• refused to give her essential caregiver status;
• issued Mrs M with two notices to leave, one of which was three weeks before she died;
• did not care for her adequately when she was at end of life; and
• wrongly reported her death to the police as unexpected.
2. Mrs X says she was caused distress and anxiety by the actions of the care home.
3. She would like an apology for the distress caused by the care home, an investigation into whether the facts in the care home’s complaint response were accurate and a decision on whether the care home followed government guidance on visiting during COVID-19.

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The Ombudsman’s role and powers

4. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider.
5. Part 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)

Mrs M was originally discharged from hospital and placed at the care home under the government’s emergency COVID-19 arrangements. From September 2022, Mrs M arranged and paid for her care. This means the complaint is against the care provider.

6. 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)
7. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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 X and considered her view of her complaint.
11. I made enquiries of the care provider and considered the information it provided.
12. I wrote to Mrs X and the care provider with my draft decision and considered their comments before I made my final decision.

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What I found

Law and guidance

13. 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 “Principles of Good Administrative Practice during COVID-19”.

Visiting during COVID-19

14. The guidance on visiting in care homes changed regularly during the pandemic as COVID-19 lockdown restrictions altered. From Around December 2020, most care homes moved from complete lockdown for all non-essential visitors to introducing restricted visiting arrangements.
15. In March, June and August 2021, the government issued updated guidance to care homes. The changing guidance remained constant in its messages on ECGs, stating “All residents may benefit from a visit from a loved one who provides a greater degree of personal care or support, to maintain their immediate health and wellbeing". It went on to say all residents should be enabled to have an essential care giver (ECG).
16. The guidance linked to a fact sheet from a national charity to provide additional clarity on ECGs. This made it clear the government’s intention was to enable all residents to have an ECG, stating “this can include for companionship, where the person’s presence… is central to the health and wellbeing of a resident. This makes it clear that it was not only about carrying out care tasks… but also about simply being there, providing company, emotional support or relieving distress”.
17. The ECG would be allowed to visit even when the care home was in lockdown due to a COVID-19 outbreak, unless there were specific reasons not to do so. The guidance stated ECGs should be able to visit more often that other visitors. The exact arrangements were to be agreed between the care home, resident and their family, with professional support if required. This would follow an individual risk assessment of the resident’s needs.

Relevant law and guidance

18. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers, inspects care services to assess if they meet the fundamental standards of care and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
19. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The CQC has issued guidance on how to meet the fundamental standards below which care must never fall.
20. Regulation 17 is about good governance. It says care providers should maintain an accurate, complete and contemporaneous record in respect of each service user. It says care providers must maintain securely records in relation to the management of regulated activity.

Care provider’s visiting policy

21. The care provider’s visiting policy states “The Registered Manager reserves the right to withdraw visiting rights from people who are threatening / abusive / violent and will ensure the removal of those visitors from the premises”.

What happened

22. In 2020, during the COVID-19 pandemic, Mrs M was admitted to Vicarage Court care home. She had capacity to make decisions about her care and wellbeing.
23. Mrs M’s contract with the care home stated that notice could be given if the resident’s presence in the home caused a risk to the health and welfare of other residents and staff.
24. In March 2021, Mrs X emailed the care home to request essential care status and explaining why this would benefit Mrs M. The benefits included visiting Mrs M in her bedroom. Mrs X received and acknowledgement of the email but no further response.
25. Between March and July, Mrs X said she saw Mrs M in the communal visiting area. However, many of these visits were cancelled because Mrs M struggled to sit in a wheelchair and would become distressed at the thought and would ask Mrs X to cancel the visit.
26. In August, the care provider emailed families with updated visiting arrangements, including arrangements for people leaving the home for visits.
27. Mrs X emailed the care home to ask for a risk assessment so she could visit Mrs M in her bedroom. The home responded and provided information about testing and the length of visits. However, it made no response to Mrs X’s request for visits to take place in Mrs M’s bedroom.
28. Mrs X said on 29 August the care manager spoke to her and said it had approved her request for bedroom visits. These would be trialled for four weeks. Mrs X says the manager told her the visits would be once a week for 30 minutes. The following day, Mrs X sent an email to the care home clarifying the above information. Mrs X’s email did not reference the fact the care home had told her she could only visit once a week. She asked the care home to reply if any of the details were incorrect. The care home did not reply.
29. The daily care records for 11 September stated Mrs M “has been granted 1 room visit a week for 30 mins”. The daily records indicate Mrs X visited once a week. Mrs X says she received no feedback from the care home over the success or otherwise of these visits.
30. Mrs X said that in mid-September, Mrs M’s niece spoke to Mrs M who said her sheets were wet. The niece spoke to staff about this and informed Mrs X. Mrs X said she was planning to call the care home that day because Mrs M had seen a doctor, and so she phoned for an update. She said the staff member she spoke to transferred her to the care home manager who said the family was “double calling” which was in breach of their agreement. Mrs X said the manager also said she may remove Mrs X’s essential caregiver status.
31. The following day, Mrs X emailed the manager to explain what she believed had happened. She did not receive a response and so she emailed one of the care provider’s directors who acknowledged her email requesting a meeting.
32. A meeting took place on 22 September with the care provider. Following the meeting, the care home director wrote to Mrs X. The letter said “while we meet the needs of [Mrs M], we can no longer meet the needs of yourself … on numerous occasions you have breached infection control procedures… we have had meetings with yourself to discuss this, however you seem to create your own version of events”. The letter went on to talk about Mrs X’s behaviour to staff which the manager said was rude and that staff had fed back that they felt “dehumanised” from her phone calls and behaviour. The letter said ‘we fail to see how this situation can remain sustainable’. It went on to say ‘we, with great regret, now have been left with no choice but to issue 28 days’ notice from today’.
33. In her response to my draft decision, Mrs X provided her husband, Mr X’s, notes of the meeting. These contained details of complaints about Mrs X from staff, Mrs X’s denial of these and discussions about Mrs M. The care home director stated in response to my enquiries that Mrs X admitted at the meeting that she had been abusive and had lied. As a result, the care home manager said she issued Mrs M with notice to leave at the meeting but then withdrew it when Mrs X became very upset. Mrs X denies her behaviour was unacceptable.
34. The following day, Mrs X contacted the local council and a social worker was appointed to the case. The social worker spoke to Mrs M who said she wanted to stay at the care home.
35. A second meeting was held on 28 September. This was attended by the care home director, two heads of units at the care home and Mr and Mrs X. Mrs X said an action plan was agreed in relation, amongst other things, to her essential caregiver status, the tasks she would carry out for Mrs M and her COVID-19 testing regime.
36. A third meeting took place on 27 October which was attended by Mr and Mrs X and the care home manager and director. Mrs X said it was agreed she would make enquiries about other care homes but she said she would not move Mrs M against her wishes. She said the manager said they would explore the possibility of moving with Mrs M. Mrs X said the manager told her the social worker had said Mrs M did not qualify for an essential caregiver.
37. In the response to my enquiries, the manager said Mrs X’s behaviour improved for a while but then reverted back again so the 27 October meeting was held. The manager said similar matters were discussed and Mrs X accepted what needed to change with her behaviour.
38. On 4 November, Mrs X emailed the care provider director about what had been discussed at the three meetings and her understanding of the current situation. Mrs X said she needed clarification over whether notice had been issued as the social worker had told her that was the case. Mrs X asked for clarification of the actions which had been drawn up at the second meeting because the care provider now said these would not be progressed because notice had been given.
39. The care provider’s director responded by email the following day. The email stated Mrs X’s letter was not a true reflection of what had been discussed at the meeting nor of what was decided. As a result, the care provider said it would shortly give Mrs M 28 days’ notice to leave. The care provider said “we feel we have given you chance after chance but you keep behaving in this strange manner”.
40. On the same day, the director wrote again to Mrs X. The letter stated that the situation was no longer sustainable and that despite lengthy meetings, Mrs X’s version of events still remained different to theirs. The care home gave Mrs M 28 days’ notice.
41. Mrs X emailed the director on 7 November. She said she understood the notice period had been paused and would be reinstated only if she contravened any of the rules related to the weekly bedroom visits or if she caused any difficulties for the staff. Mrs X said she found the care provider’s response “to my honest attempt to clarify the outcome of the meetings deeply upsetting. We were shocked by the immediate reinstatement of the notice to leave”.
42. On 16 November at around 4am, care staff noted that unusually, Mrs M had not pressed her buzzer during the night. They began to monitor her. At 5am staff checked Mrs M’s oxygen levels again and pulse and found they had decreased. Staff called the GP who visited that morning. The daily notes record the GP said Mrs M’s levels were now normal, she was fine for her age and it was not unusual for oxygen levels and pulse to be lower than normal during the night when someone was lying down.
43. Another GP visited on 17 November and the notes record they considered Mrs M to be fine. However, she began to complain of crushing chest pain so the GP called 999. The paramedics carried out a test of Mrs M’s heart which was normal but they wished to admit her anyway to hospital. The notes record Mrs M declined and the paramedics called Mrs X who visited that afternoon.
44. The care notes record Mrs M was seen by a GP on 24 November as she said she had stomach and head pains. The GP advised her to try to eat and drink more.
45. On 26 November at 12:40am, the care notes record Mrs M was frail and anxious. Staff tried to call a GP and were told someone would call back within the hour and to call 999 if Mrs M’s condition worsened. A GP called back at 1:21am and arranged an emergency home visit. They told staff to call 111 if Mrs M’s condition changed. Staff called Mrs X at 1:41am. A note written at 3:14am recorded Mrs X arrived at 2:29am and Mrs M died at 2:30am. A second note written at 3:28am stated staff called 999 at 2:25am as Mrs M was not responsive but whilst they were trying to get through she died.
46. A GP arrived at 4:20am to sign the death certificate. At 5:39am staff called the police to report the death. The police said they only accepted calls from paramedics and to wait until they arrived. The note for 8:27am confirmed the paramedics had notified the police who did not take any further action.
47. At the beginning of December, Mrs X complained to the care provider about the issues in paragraph 1. Her husband Mr X also wrote to complain. One of his complaints was that he had been refused approval to visit Mrs M, including on the night she died. The care provider responded in January and made the following points:
• the government rules stated visits could only take place in one lounge. Therefore, by allowing Mrs X to visit Mrs M in her room, it was being flexible to Mrs M’s needs;
• since July 2021, any three named people could visit for 30 minutes. Mr X could have visited in this capacity;
• the care home and care provider had two meetings with Mrs X and the role of essential caregiver was to be explored. The manager was in the process of doing so when Mrs X contacted a Council social worker who then spoke to the care home manager and said Mrs X did not qualify for essential caregiver status as she was not providing care in line with the guidelines;
• at the two meetings, the notice period was discussed. Mrs X expressed a lack of trust in the staff, and it was discussed how the situation could improve. This was the reason the first notice was rescinded. Mrs X decided at the end of the second meeting that there were other care homes with better visiting arrangements and all decided it was best she explored this option. The director said notice was given again when Mrs X wrote to them and her version of events differed significantly from theirs; and
• Mrs M declined to go to hospital when paramedics were called twice in the weeks before her death. She was seen by the GP two days before she died who expressed no concerns. Mrs M died unexpectedly which is why it was reported to the police.
48. Mrs X remained unhappy and her husband complained to the Council who replied in January 2022. It said that essential caregiver status was discussed at a meeting in September 2021, and it was refused because Mrs M’s needs were being met by care workers. It signposted Mrs X to us.
49. During my investigation, the care provider stated that Mrs X’s behaviour included “highly erratic calls every 15 mins at times, then abusive towards staff in these calls, being argumentative with numerous members of staff and the manager, making up issues which she admitted afterwards were complete lies, would not follow Infection Prevention Control rules when visiting, and at one occasion was found entering into another resident’s room who had no link to her... our manager and staff were very uncomfortable with her behaviour and considered it entrapment and abuse”.
50. The care provider also said in response to my enquiries that:
• it left the decision of whether Mrs X qualified for essential care giver status to the Council social worker because of the breakdown in its relationship with her; and
• it could not understand why the care notes recorded Mrs X had been granted one 30 minute bedroom visit a week because she was free to arrange visits as she wished.

My findings

Essential care giver status and visiting arrangements for Mrs M

51. The CQC’s Regulation 17 states care providers should maintain an accurate, complete and contemporaneous record in respect of each service user.
52. There is a lack of clarity over if and when Mrs X was given essential care giver status. There is no record of the care home carrying out an individual risk assessment and there is nothing in writing detailing how and why the care home made its decisions around this matter. Furthermore, in September/October 2021, when a social worker became involved in the case, the care provider stated it had followed their advice to refuse essential caregiver status. This was on the basis that Mrs X did not provide personal care to Mrs M. However, the decision over whether a resident qualified for essential caregiver status was for the care home manager to make, not the social worker. And the reasoning given by the care home manager, without any other documentation to support it, does not appear to be in line with the government guidance in place at the time which said all residents should be supported to appoint an essential caregiver.
53. During my investigation, the care provider stated Mrs X was allowed to visit as much as other visitors, but her commitments meant she was only able to come once a week. There is nothing in the records it sent me to evidence this.
54. Mrs X states she was told she was only allowed one visit a week in Mrs M’s bedroom (Mrs M struggled to leave her room). Mrs M’s daily records support what Mrs X states. And the fact that Mrs X did only visit once a week reinforces her view she believed she was only allowed a weekly visit. If, as the care provider states, Mrs X could have visited more often, it appears Mrs X was unaware of this fact.
55. The care provider’s failure to keep notes of the decision-making process over essential caregiver status and visiting is a breach of CQC Regulation 17 and is fault.
56. It is not for the Ombudsman to state if the care home should have granted Mrs X essential caregiver status. Where we find fault we will try to put the person in the position they would have been in if the fault had not occurred. In this case that is not possible. However, I have made a recommendation to prevent a reoccurrence of the same fault in future.
57. In relation to Mr X visiting, the care provider stated Mr X could have visited weekly if he chose, as a named visitor. This was in line with its visiting policy. I have seen no evidence either Mr and Mrs X made any specific requests for allowing Mr X to visit, either in the lounge or Mrs M’s bedroom. I will not pursue this matter further.

Notice to leave

58. The care provider’s contract with residents specified the reasons when it could end a placement. These included situations where the resident’s presence in the home was causing a risk to the health and welfare of other residents and staff. Although Mrs M herself did not cause a risk to other people, the care provider stated Mrs X regularly breached infection control procedures when she visited, thus putting others at risk. It also said her behaviour towards staff also affected their mental wellbeing. It concluded Mrs M's presence put others at risk and gave notice.
59. Mrs X denies she behaved in such a way and states there is no proof to what the care provider claims.
60. Mrs X’s notes of the meetings with the care provider show that there was reference to her behaviour and its effect on staff although she denies she behaved inappropriately. Emails following the meetings demonstrate the care provider had a different recollection of what was agreed at the meetings.
61. 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.
62. 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.
63. I cannot know what was discussed at the three meetings in September and October 2021. The fact they were held shows the care provider took some efforts to making the care placement work. However, the lack of any written records of the issues with Mrs X, the care provider’s failure to write to Mrs X with the actions points agreed and its expectations of her behaviour and potential repercussions is a further breach of Regulation17 and is fault. This meant an opportunity was lost to give greater clarity to the situation.
64. Because of the lack of records, I cannot come to a finding on whether the care provider acted with fault when it gave notice. However, I have made recommendations to address the poor record-keeping I have identified.

Care at end of life

65. I have considered the care notes for the period September to November 2021. The records are sufficiently detailed to show staff cared appropriately for Mrs M and took suitable action when her health deteriorated, including involving the GP promptly. When Mrs M began to deteriorate in the hours before her death, care staff again promptly called for medical assistance. There was no fault in the care home’s actions.

Reporting of Mrs M’s death to the police

66. 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.
67. Care home staff called the police. I will not investigate this further. This is because no action was taken at that stage because the police said the paramedics must make the call. Therefore, there was no injustice. And because the paramedics later took the decision to call the police, it is unlikely in any case that there was any substantive fault in the care home’s actions. The actions of the paramedics are outside the scope of this investigation.

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Agreed action

68. Within one month of the date of the final decision, the care provider has agreed to remind staff of the need to record all key actions and decisions particularly in contentious situations where notice is being considered, and to ensure all relevant parties have a copy. The care provider should provide us with evidence that it has done so.

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Final decision

69. There was fault but it is not possible to determine whether there was injustice. The care provider has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman