Summary: Ms X and Mrs Y complained Brantwood Hall Care Home failed to notify Mrs Z’s family that she was unwell or of her death in November 2020. As a consequence Mrs Z’s family were unable to visit her at the end of her life or arrange and attend a funeral for her. The failure to correctly record Ms X as a family member on Mrs Z’s care plan and to inform her of Mrs Z’s death is fault. This fault has caused Ms X an injustice.

The complaint

1. The complainants, whom I shall refer to as Ms X and Mrs Y complained Brantwood Hall Care Home failed to notify Mrs Z’s family that she was unwell or of her death in November 2020. As a consequence Mrs Z’s family were unable to visit her at the end of her life or arrange and attend a funeral for her.
2. Ms X and Mrs Y also complain about the way they were informed of Mrs Z’s death in December 2021, and the care home and care provider’s subsequent failure to provide adequate information regarding Mrs Z’s death, funeral arrangements, or estate; or the whereabouts of gifts sent to Mrs Z since November 2020.

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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. 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)
4. 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)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Ms X and Mrs Y;
• made enquiries of the care provider and considered the comments and documents the care provider provided;
• discussed the issues with Ms X and Mrs Y; and
• Ms X, Mrs Y and the Care Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

6. Mrs Z was a resident a Brantwood Hall Care Home for a number of years. Mrs Z did not have any siblings or children and as she lacked capacity, a firm of solicitors acted as her financial deputy. The firm of solicitors signed the contract with the care home for Mrs Z and were recorded as her contact.
7. Ms X was Mrs Z’s second cousin. On learning she had moved to the care home Ms X began visiting Mrs Z. Ms X says the care home staff were not initially aware that Mrs Z had any family and added Ms X’s contact details to Mrs Z’s file. Ms X says she visited every six weeks and was known by the staff. She says the care home contacted her whenever they needed to speak to a member of Mrs Z’s family about her care.
8. For example in January 2020 the care home asked Ms X to sign a form as Mrs Z’s next of kin to allow them to change Mrs Z’s GP surgery. Ms X says she provided details of Mrs Z’s first cousin and intended to arrange an appointment to discuss any issues regarding Mrs Z’s care. However, this was not possible due to the COVID 19 pandemic and the national lockdowns.
9. Ms X says the care home contacted her by telephone in early March 2020 to advise she could no longer visit Mrs Z due to the pandemic. As Mrs Z was only able to communicate face to face Ms X was unable to have any contact with her during the lockdowns. Ms X says she called the care home in October 2020 to confirm whether the home’s COVID-19 rules would allow her to send Mrs Z a gift. The care home confirmed she could and that Mrs Z was “fine”.
10. Ms X sent Mrs Z a card and gift in October 2020. She also sent a gift in December 2020 and October 2021. Ms X sent another gift in December 2021, but this was returned by the courier. When she called the care home to find out why it had been returned she says she was initially told there was no one of Mrs Z’s name at the home. Another member of staff then confirmed Mrs Z had died over a year ago and suggested Ms X speak to the manager the following day.
11. When Ms X and her daughter, Mrs Y spoke to the manager they asked for details of Mrs Z’s death, her funeral, her possessions and why her family had not been informed of Mrs Z’s death. The manager told Ms X and Mrs Y they would have to retrieve Mrs Z’s file from archive to provide this information. Ms X also asked for copies of the care home’s procedure following the death of a resident, its policy on COVID-19, and its complaints procedure.
12. During the conversation the care home manager said they had been told Mrs Z’s niece, who used to visit, had been informed of her death and had dealt with things and attended the funeral. Ms X questioned this as Mrs Z did not have a niece.
13. Ms X and Mrs Y confirmed their requests for information and copies of the care home’s policies in writing and asked for this to be provided within 48 hours. The care home provided copies of its policies and told Ms X and Mrs Y it would need to speak with Mrs Z’s former solicitor before responding to their queries. Ms X and Mrs Y questioned why this was necessary and also questioned whether the care home was acting in line with its own policies.
14. In January 2022 the Care Provider said it could not provide the information requested as neither Ms X nor Mrs Y were named as a contact or next of kin on Mrs Z’s file. It suggested they contact Mrs Z’s former solicitor for information. Ms X and Mrs Y contacted the solicitors but received only limited information.
15. They then made enquiries with other agencies to learn more about Mrs Z’s death and her funeral and obtained a copy of Mrs Z’s death certificate. Ms X and Mrs Y we able to locate Mrs Z’s grave and were distressed to find it unmarked and overgrown. They have arranged with other family members for a headstone to be installed.
16. In October 2022 Ms X and Mrs Y made a formal complaint to the Care Provider about the actions of the care home both preceding and following Mrs Z’s death. They asserted the care home had not followed its own policies by not advising family members of Mrs Z’s death or enabling them to make arrangements for a funeral. It had not provided information regarding the circumstances of Mrs Z’s death or confirmed whether this was anticipated or sudden. Ms X and Mrs Y also asserted the care home had not treated them with sensitivity and respect.
17. Ms X and Mrs Y were also concerned items of jewellery are unaccounted for. They say these were not included in Mrs Z’s personal possessions given to them by her solicitors. Ms X and Mrs Y also noted the care home had not returned all gifts sent to Mrs Z after her death and state these were unlawfully retained.
18. In addition Ms X and Mrs Y complained the care home had not followed its policy on visiting during the COVID 19 pandemic. This stated that visiting would only be considered in exceptional circumstances, such as end of life. Ms X and Mrs Y complained the care home made no attempt to contact them when Mrs Z was dying and that Mrs Z died without her family’s support or presence. They asserted this was also a breach of Mrs Z’s human rights, in particular her right to respect for her private and family life.
19. Ms X and Mrs Y asserted the care homes actions also breached the Health and Social Care Act 2008 (Regulated Activities) Regulations, CQC guidance, guidance on care for the dying, and codes of conduct and practice.
20. The Care Provider responded in November 2022 and reiterated it was unable to find any evidence to indicate Ms X or Mrs Y were Mrs Z’s next of kin or nominated responsible person. It sought to assure Ms X and Mrs Y that the care home staff had discharged all of their statutory duties with regards to Mrs Z’s death and communicated appropriately with individuals and organisations including Mrs Z’s solicitors. It considered Mrs Z’s solicitors were best placed to answer any further questions.
21. The Care Provider acknowledged the upset Ms Z’s death had caused Ms X, Mrs Y, and the family. It apologised on behalf of any member of staff who had added to that upset.
22. Ms X and Mrs Y were not satisfied by this response and were unhappy the Care Provider had not responded within the timeframe set out in its complaints policy. They asked for their complaint to be reviewed. The Care Provider maintained it had provided as much information as it could and confirmed Ms X and Mrs Y had now exhausted the complaints procedure.
23. Since Ms X and Mrs Y have complained to the Ombudsman, the Care Provider has identified further care records for Mrs Z, archived in a different location. It has written to Ms X and Mrs Y confirming there is one reference to Ms X as ‘relative, significant other or representative’ for Mrs Z. On one document it also states Ms X is next of kin. The Care Provider explained this information was not held within the care plan at the time of Mrs Z’s death. It confirmed it would be their normal practice to contact any known family members upon the death of one of their residents. It regretted not communicating Mrs Z’s death to Ms X and Mrs Y at the time and apologised for the distress this caused.
24. The Care Provider also apologised for not identifying and considering the older versions of Mrs Z’s care plans when responding to Ms X and Mrs Y’s complaint. Had it done so, it would have identified Ms X as a relative. The Care Provider confirmed that in the future, when responding to complaints, it would identify a reasonable date range of records to consider. It would also ensure that archived information held at a different location was explored so that it responded fully to complaints.
25. In response to my enquires the Care Provider has provided copies of Mrs Z’s care plan, daily records, and personnel file. I have considered these in detail but am unable to share these records with Ms X and Mrs Y.
26. It has also carried out an internal investigation to ascertain why Mrs Z’s care plan in place at the time of her death did not include Ms X’s details as a known family member. The records show that when Mrs Z moved to the care home her husband was her next of kin, with support from the solicitors with her finances. When Mrs Z’s husband passed away all contact information was recorded as the firm of solicitors.
27. Ms X’s details were recorded in Mrs Z’s records for a period between August 2019 and April 2020. There are also records of Ms X visiting between September 2019 and February 2020. The visits ceased during the COVID 19 visiting restrictions. The Care Provider was unable to determine why Ms X’s details were not transferred over to the new care plan. It acknowledges that despite the lack of contact during the COVID 19 restrictions Ms X should have been recorded on the new care plan.
28. The Care Provider has reviewed its practices and will make staff aware when rewriting care plans that all information is to be transferred. This will be counter checked by the care home manager. It will also ensure that all information for residents is kept together until death and ensure that they are easily accessible.
29. As the Care Provider has now confirmed Ms X details was identified as a family member on Mrs Z’s records, Ms X and Mrs Y assert the provider should provide them with details of the circumstances surrounding Mrs Z’s death. They would also like the Care Provider to confirm what happened to Mrs Z’s jewellery following her death. They believe this is information they would have received had Ms X’s details been correctly recorded on Mrs Z’s care plan at the time of her death.

Analysis

30. It is clear from the documentation that while Ms X was not Mrs Z’s next of kin, she was known to the care home staff and had been recorded in Mrs Z’s records as a family member. The failure to accurately transfer all information to Mrs Z’s new care plan in April 2020 and record Ms X as a family member meant Ms X was not informed of Mrs Z’s death. This is fault.
31. Ms X says she contacted the care home in October 2020 to check whether she could send Mrs Z a gift. There is no record in the care records of this call or of any further contact between Ms X and the care home between March 2020 and December 2021. However, Ms X sent Mrs Z cards and gifts in December 2020, October 2021, and December 2021. It is unclear what happened to these cards and gifts as only the gift in December 2021 was returned to Ms X. It is also unclear why these gifts did not prompt the care home, particularly in December 2020, shortly after Mrs Z’s death, to review whether there were family members who should have been informed of Mrs Z’s death.
32. Ms X and Mrs Y did not learn of Mrs Z’s death for over a year, which understandably caused them significant distress and upset. Ms X and Mrs Y are particularly upset that they were unable to visit Mrs Z before she died and that family were not involved in arranging or able to attend Mrs Z’s funeral. They also assert the funeral arrangements were not in accordance with Mrs Z’s spiritual wishes.
33. Mrs Z had purchased a grave space in Wakefield cemetery and her care plans recorded her religious and spiritual wishes and her end of life care/plans. Mrs Z’s solicitors rather than the care home arranged her funeral. I am unable to confirm whether Mrs Z had provided her solicitors with any specific instructions regarding her funeral as this is not part of my investigation. The solicitors did not install a headstone, but I note Ms X, Mrs Y and the family have now arranged this.
34. Ms X and Mrs Y’s distress and upset was exacerbated by the Care Provider’s response to their complaint. Although the care home manager confirmed they would request Mrs Z’s records from archive, they did not retrieve all of the records. Had they done so, the Care Provider would have identified Ms X was recorded as a family member. Instead, the Care Provider appears to have relied on information in the most recent care plan and declined to provide any information to Ms X and Mrs Y on the basis they were unknown. The failure to retrieve all relevant information in order to respond to Ms X and Mrs Y’s complaint is fault.
35. I recognise however that as neither Ms X nor Mrs Y were Mrs Z’s personal representatives they would not in any event have automatically been entitled to all of the details and documentation they had requested. Ms X and Mrs Y dispute this and assert there are circumstances which would allow them access to Mrs Z’s records. It is not the Ombudsman’s role to interpret this legislation; or determine whether the criteria is meet or what information they could request.
36. The Care Provider has taken steps to ensure that in future information is correctly transferred when care plans are updated and that records are correctly stored and archived together. The Care Provider has also apologised for the distress caused to Ms X and Mrs Y. This is to be welcomed, but I do not consider the apology alone to be an adequate remedy for the injustice the care home’s failings have caused Ms X and her family.
37. Our key principle is that any remedy should, as far as possible, put the complainant back in the position they would have been in but for the fault we have identified. Clearly that is not possible in this instance and I consider a financial remedy would be appropriate.

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Agreed action

38. The Care Provider has agreed to pay Ms X £500 in recognition of the significant distress and upset the failure to inform her of Mrs Z’s death has caused.
39. The Care Provider should carry out this action within one month of the final decision on this complaint and should provide us with evidence it has complied with the above actions.

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Final decision

40. I have ended my investigation and uphold Ms X and Mrs Y’s complaint. I have made recommendations to remedy injustice the organisation has agreed to carry out.

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Investigator's decision on behalf of the Ombudsman