Summary: We decided not to investigate this complaint about unfair visiting restrictions in a care home. This is because an investigation is unlikely to find the care home’s actions caused a significant injustice.

The complaint

1. Mr A complains Cedric House EMI Residential Care Home (the Care Home) has unreasonably denied the family’s requests to visit his father, Mr B, in his bedroom since he entered the Care Home in November 2021. Mr A complains the Care Home’s continued policy of only allowing visits within the conservatory is disproportionate and unnecessary.
2. Knowsley Metropolitan Borough Council (the Council) and NHS Cheshire and Merseyside Integrated Care Board (the ICB) currently jointly fund Mr B’s placement. This is why we registered the complaint against the Council, as a social care commissioner, and the ICB, as an NHS commissioner. We have also recorded the complaint directly against the Care Home, as a health provider.

Back to top

The Ombudsmen’s role and powers

3. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
4. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship. If it has, they may suggest a remedy. (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The Ombudsmen provide a free service but must use public money carefully. They may decide not to start or continue with an investigation if they believe:

• it is unlikely they would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify their involvement, or
• they cannot achieve the outcome someone wants.

(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

How I considered this complaint

6. I considered Mr A’s written complaint and copies of the complaints he made to the Care Home and the Care Home’s written responses. I spoke to Mr A on the telephone. I read versions of government guidance on care home visiting applicable to the period under review.
7. I considered the Ombudsman’s Assessment Code.
8. I shard a draft version of this decision with Mr A and invited his comments on it. I considered the comments I received.

Back to top

What I found

Relevant guidance

9. The Government published guidance for visiting people in residential care during the COVID-19 pandemic: Guidance on care home visiting. It amended this guidance several times after November 2021.
10. An update to the guidance in August 2021 (which was still in place at the beginning of November 2021) noted that “Visiting is a central part of care home life. It is crucially important for maintaining the health, wellbeing and quality of life of residents. Visiting is also vital for family and friends to maintain contact and life‑long relationships with their loved ones and contribute to their support and care”.
11. The guidance set out that it was for individual care homes to develop their own policies on visiting. It noted this was because each care home would be best placed to consider “its physical environment and facilities, and the needs and wishes of their residents”. It noted the need to balance the needs and wishes of each resident with the wellbeing of other residents.
12. The guidance said: “Care home managers should feel empowered to exercise their judgement when developing practical arrangements or advice to put this guidance into practice so that visiting can take place smoothly and comfortably for everyone in the care home”.
13. The guidance said care homes should use a risk assessment to help determine its visiting policy, including decisions about where visits would happen. It also noted that “Providers should consider the use of designated visiting rooms”.
14. On 25 November 2021 the government updated the guidance. The revised guidance said: “visits should take place in a room most practical and comfortable for the resident (for example, residents with dementia may be more comfortable in their own room with familiar belongings)”. It continued to state it was for care homes to determine their own policies which should be based on a risk assessment that assesses how the care home could best manage visits safely, considering, among other things:

• the needs of its residents and visitors;
• residents’ rights to visits and the important role visitors play in residents’ wellbeing; and
• what is possible within the layout and facilities within the home to ensure that mixing between visitors is limited as much as possible.

15. The government updated the guidance again in December 2021 and then in January, February and March 2022. The sections relevant to this complaint remained the same.
16. The government withdrew Guidance on care home visiting on 1 April 2022. It replaced it with Infection prevention and control in adult social care: COVID‑19 supplement. This said: “Contact with relatives and friends is fundamental to care home residents’ health and wellbeing and visiting should be encouraged. There should not normally be any restrictions to visits into or out of the care home. The right to private and family life is a human right protected in law (Article 8 of the European Convention on Human Rights). Where visiting is modified during an outbreak of COVID-19 or where a care home resident has confirmed COVID-19, every resident should be enabled to continue to receive one visitor inside the care home…”
17. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to including respect for private and family life (Article 8).
18. The Act requires all local authorities and other bodies carrying out public functions to respect and protect individuals’ rights.
19. Not all rights operate in the same way. The right to respect for private and family life is a ‘qualified’ right. This means that interference with it may be justified to protect the rights of others or wider public interest.

What happened

20. Mr B moved into the Care Home in November 2021. In November 2022 Mr A complained to the Care Home that, since that time, neither he nor any other member of the family had been allowed into the main body of the Care Home or the Mr B’s bedroom. Mr A said they had asked for permission to do so on many occasions but these requests had always been denied. Instead, Mr A had taken Mr B out of the Care Home when he had visited. Mr A said other members of the family had only been able to see Mr B for pre-arranged half-hour visits in the Care Home’s conservatory.
21. The Care Home replied the following month and did not identify any failings in its actions. It acknowledged that the government had stated there were no current restrictions on visits. It said, instead, it was using its own discretion to create a policy which safeguarded everyone. The Care Home said its decision to limit visits to its conservatory would remain in place until at least February 2023. The Care Home said it had already experienced two outbreaks this year which had been very challenging. It said its priority was to keep everyone safe.

Analysis

22. The guidance on care home visiting notes that it is for each care home to set out its own policy. However, the guidance noted that it should be based on risk assessments and that, from November 2021, “visits should take place in a room most practical and comfortable for the resident”. Further, since April 2022 guidance has noted that there should not normally be any restrictions to visiting. If an investigation found the Care Home had disregarded its discretion and imposed a blanket policy without proper risk assessments, this could amount to fault.
23. As well as considering whether we would have the potential to find fault we also need to consider if we would be able to link this to a significant injustice. We will not normally investigate a complaint unless there is good reason to believe that the complainant has suffered significant personal injustice as a direct result of the actions or inactions of the service provider. This means that we will normally only investigate a complaint where:

• the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures by the service provider, or
• there are continuous and ongoing instances of a lower level injustice that remain unresolved over a long period of time.

24. We will not normally investigate a complaint where the alleged injustice is not a serious or significant matter.
25. In this instance, Mr B’s family have been able to visit Mr B in the Care Home regularly, and Mr A frequently takes him out. As such, an investigation would not be able to find that actions by the Care Home unreasonably denied Mr B or his family an opportunity to spend time with each other. The impact would relate to the nature of that time together.
26. Mr A has been able to, and continues to, take Mr B out of the Care Home where they are at liberty to speak freely and openly, and to spend time at places of their choice. Also, the visits in the conservatory are by appointment and there are no other residents in the area at the same time. This helps guard against any loss of privacy.
27. The outstanding consideration relates to whether Mr B – and members of the family – would have found visits in Mr B’s room to have been more comfortable, dignified and pleasant than visits in the conservatory. It seems probable this would have been the case. However, in the overall context of the type and frequency of visiting the Care Home has facilitated, this is not so significant and serious an impact as to warrant the use of the Ombudsmen’s resources to investigate.

Back to top

Decision

28. We decided we should not investigate his complaint because it is unlikely we could find Mr B, or his family, have suffered a significant injustice.

Investigator’s decision on behalf of the Ombudsmen

Back to top

Investigator's decision on behalf of the Ombudsman