Date of decision: 30 July 2025
Summary
A man complained after being banned from visiting his mother in a care home, saying this caused distress and kept him from spending time with her at the end of her life. The complaint focused on whether the Care Provider’s decision to restrict visits was justified and proportionate, considering both the welfare of staff, other residents, and the individual’s wish to see his mother, alongside a best interests decision by the LPA holding sibling.
What happened
Mrs D became a permanent resident at Birchmere Care Home in July 2023. Tensions between her children—Mr X and his sister Ms P, who was her Lasting Power of Attorney holder [regarding her welfare, we assume, although the report does not clarify this for certain] — grew over time, with police being called following incidents involving Mr X in October 2023 and February 2024.
In June 2024, the Care Home proposed that Mr X and Ms P visit at different times due to ongoing conflict.
In July 2024, Mr X attended the Care Home at a time he was specifically asked not to. When asked to leave, he refused, which led to another incident requiring police involvement and resulted in Mr X being charged with assault. Mr X denied wrongdoing and legal proceedings continued at the time of the Ombudsman’s report.
Mr X reported perceived poor care to the Care Quality Commission (CQC), which asked the Care Provider to respond. The Care Provider denied the allegations and confirmed separate safeguarding concerns about alleged financial abuse had been raised with the local Council, but explained these did not involve the Care Home.
Citing risks to staff and residents, the Care Home consulted the local council’s social services, which assigned a social worker to investigate [we assume from a safeguarding perspective, although this is not made clear]. Another incident during Mr X’s August 2024 visit resulted in police being called again.
The Care Home then told Mr X he could visit only if accompanied by a police escort, but offered him video calls as a less restrictive alternative. Mr X declined these calls, saying they would distress his mother.
In September 2024, Mr X complained to the Care Provider, suggesting a family member supervise visits instead. The Care Provider agreed that Mr D’s cousin could do so for weekly visits.
Later that month, a meeting involving the Care Home, Council, and Mr X was held—where it was agreed in principle that Ms J, another family member, could supervise visits, but this was subject to approval by Ms P, who was not present.
Despite objecting in principle, Mr X accepted this arrangement, due to his mother’s deteriorating health, and submitted Ms J’s contact details. However, supervised visits were not arranged.
In October, Mrs D was served notice to quit by the Care Provider, citing unmanageable family conflict and excessive correspondence from Mr X.
Eventually, after discussions with Ms P, the Care Provider allowed Mrs D to remain due to her fragile condition.
Mr X was later formally told his visiting ban would continue as he had not agreed to any visiting plan and risks to staff and residents persisted.
Mrs D remained at the home and died in January 2025.
Throughout, the Care Provider maintained that visiting restrictions resulted from persistent issues, that ultimate authority for visit refusal lay with Ms P as attorney, and it had continued seeking less restrictive options where possible.
What was found
The Ombudsman found the Care Provider followed proper legal procedures, only restricting visits after considering serious safety concerns and attempting proportionate, less restrictive alternatives, including supervised and video visits. The Ombudsman determined the Care Provider appropriately consulted with the Council and CQC, and that the 2 month delay in confirming supervised visiting arrangements, though frustrating, was not ‘fault’ in the context of balancing multiple competing interests.
Statutory obligations under the Health and Social Care Act regulations and the Mental Capacity Act were met.
The restriction stemmed from ongoing serious incidents, and, once the attorney decided visits were not in Mrs D’s best interests, the Care Provider felt that it had to support that decision—legal challenge, if any, was a matter for court and the excluded visitor.
The primary impact was distress and exclusion felt by the complainant, but the Care Provider’s actions were found lawful and justified.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
From the perspective of community care law and public law principles, the Ombudsman’s report largely aligns with the requirement that restrictions on visiting in care settings must balance the rights and safety of all involved.
We think that the Ombudsman was satisfied that the provider had undertaken risk assessments, considered all alternatives, and clearly documented decision-making, showing why supervised visits or alternative supervisors were deemed unsuitable, and why outright exclusion was “necessary” for safety.
It would have been better for public and provider education to go that far, before finding no fault, but we have to disagree with the Ombudsman’s approach to one aspect of the matter.
Since April 2024, Regulation 9A of the Health and Social Care Act regulations gave all care home residents (including privately funded ones, like Mrs D) a statutory right to receive visits unless the provider can justify restriction as necessary, proportionate, and evidence-based—typically for safeguarding, safety, or wellbeing reasons – not merely operational reasons.
Restrictions must not be arbitrary or for the convenience of the provider/staff, but can be imposed in response to genuine and evidenced risks to staff or other residents (as might be claimed here, after repeated police-involved incidents generating staff fear).
The care home is ultimately responsible for its environment and owes a duty of care to all residents and visitors. It is suggested that this is why the Regulations elected to give the home the final decision, and why it may lawfully restrict visits if essential to reduce risk, provided the least restrictive option is chosen, regularly reviewed, and alternatives (video calls, supervised visits) are offered where feasible. It can then wait to be challenged by anyone, using either human rights proceedings in the civil courts, or the Court of Protection, or by using safeguarding or the complaints process by people interested in pulling in more weighty players to thrash out the issues.
Ms P, if she was indeed a holder of a welfare Lasting Power of Attorney, was able to make decisions on Mrs D’s behalf (assuming that Mrs D lacked capacity on this issue – and we note that nothing related to Mrs D’s state of mind about the son’s visits is mentioned) but these must be in Mrs D’s best interests and proportionate—Ms P could not have claimed to be empowered to make simply “convenient” bans unless justified by Mrs D’s needs or safety.
What an LPA has no power to do is to make decisions for the care home as to its decision making under the regulations – because other people’s rights are then in play – for instance, if she had been saying that someone who was not acting appropriately should be let in to visit.
The Council, as the local safeguarding authority, even if not a purchaser of the care package, could make recommendations in safeguarding scenarios, where it has been brought in by either the home, the attorney, the visitor being denied access or by CQC, after a complaint has been made – but would not have statutory dominion simply to tell the provider what to do.
Getting the person’s case to the Court of Protection would determine the decision about capacity and best interests for the person, but not the decision for the home’s management. The only place for a challenge to the home to be brought is we think the civil courts on a human rights basis.
Any safeguarding council’s recommendations should of course be considered regarding an objective view as to the risks and would create justification for any care home taking the advice on board. In practice, safeguarding is collaborative: the provider, Ms P (as attorney), and Council each have a say, but the provider would hold the final operational decision for restrictions in its setting—always subject to regulatory and legal checks.
Even if the council had been the purchaser of the care package under the Care Act, we do not think it could simply override the statutory rights of the prospective visitor, even on the say-so of the attorney, via a Care Act care plan. Nor do we think it could simply instruct the provider to do its bidding under contract: the regulations provide for this framework for everyone, whether publicly funded or not, and the care plan and the contract contents need to be cognisant of that fact.
Mr X had, as a matter of law, a right to see his mother, qualified only by evidenced risk to others, resident’s best interests, and proper regulatory process.
After restriction, Mr X followed appropriate complaint channels (to the provider, CQC, and apparently to the council). He does not appear, however, to have been advised about further possible remedies, which could have included:
- Challenge via OPG/Court of Protection about the welfare attorney’s rejection of even accompanied visits, if it could be shown that that was not in Mrs D’s best interests – although this would not have cut across the care provider’s ultimate decision making obligation under the regulations, taking everyone’s interests into account…it would have made it harder for the care home to stick to its position, however.
- Challenge via the ordinary courts for breach of statutory duty or breach of some sort of implied duty in contract to comply with regulations on care homes.
- Challenge in the ordinary court for Human Rights damages IF and only if the mother’s care had been publicly funded (because the care home would then have been a public authority for human rights purposes.
It is not likely that the mere imposition of a decision-making role on care homes under the visiting regulations is enough to give the excluded visitor the right to take the care home to the Administrative Court as a body exercising functions of a public nature.
The part of the decision that we cannot agree with is the suggestion that it was not ‘fault’ to take the Attorney as being the determining factor.
The LPA does not have an unqualified right to exclude or admit visitors to a care home; all such decisions are ultimately constrained by statutory duties and may be reviewed if challenged.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Avery Homes (Nelson) Limited (24 013 685) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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