Summary: There was fault in some actions of the commissioned care provider which caused injustice. There was also some fault in the Council’s record-keeping for which it has apologised, but which legitimately caused Ms A anxiety and it agrees to go further to recognise that. There is no substantive evidence the Council failed to investigate Ms A’s safeguarding concerns, although it gave less weight to them than she wished.

The complaint

1. Ms A (the complainant) complains about the standard of care and treatment provided to her sister (Ms X) in a care home. She says the commissioned care provider has failed to investigate her complaints properly and the Council will not support her.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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(1), as amended)
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, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions.

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How I considered this complaint

5. I considered evidence provided by Ms A and the Council and care provider as well as relevant law, policy and guidance. I spoke to Ms A.
6. All parties had an opportunity to comment on my draft decisions. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

7. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
8. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
9. Regulation 12 says care and treatment must be provided in a safe way for service users.
10. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves.
11. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
12. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves.
13. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.
14. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If a person does not qualify for NHS Continuing Healthcare, the need for care from a registered nurse must be determined. If the person has such a need and it is determined their overall needs would be most appropriately met in a care home providing nursing care, then this would lead to eligibility for NHS-Funded Nursing Care

What happened

15. Ms X is an adult (under 65) with moderate learning disabilities. She has lived in care homes for some years. Her sister Ms A has LPA for her health and welfare, and for her finances: she also acts as her “Relevant Person’s Representative” in respect of Ms X’s DoLS authorisation. Most recently Ms X moved into the Lancaster Grange Care home in April 2024. Ms A moved her there as she was unhappy with the care provided at the previous homes.
16. Ms X was admitted to a residential placement in the home although she is eligible for Funded Nursing Care. The care provider says Ms A preferred the ground floor residential rooms for her sister and as her nursing needs were minimal, the care provider agreed Ms X could be admitted on that basis. Ms A has provided documentary evidence that this was the care provider’s decision, not hers. She says they were shown two first floor rooms in the nursing unit, one of which Ms X preferred, but after their visit the manager wrote to the Council and staff to say, “Upon review of her assessment with my heads after she left we strongly feel this would be better for her downstairs. This is mainly due to her anxiety over noises.”
17. In June 2024 Ms A began to raise some complaints about the care provided to Ms X. She was concerned that no bowel movement charts were maintained for Ms X despite this being included in her care plan and advised by the practitioner who examined her after she moved into the home (“care staff to monitor bowel pattern and administer aperient as prescribed”). The care home general manager responded to Ms A’s complaints in July 2024. He said they were not recording Ms X’s bowel movements as they were regular but he agreed to put this in place: “I have said …today that this absolutely has to be in place from today and there can be no omissions. I will write a list of things that need to be done urgently to satisfy this situation and this will form part of that”. Ms A says despite this assurance, the monitoring did not take place systematically.

Ms A said drinks were being served at too high a temperature. Ms A also said the care provider had initially said it would support Ms X with her choice of foods and she had given the care provider a list of foods Ms X (who has Avoidant/restrictive food intake disorder, or ARFID) would eat, but said her sister would choose other foods offered as she was a “people pleaser”. She says Ms X often complained to her and to visiting professionals that she did not like the food she was given at the home. The care provider replied that Ms X ate really well on the days Ms A was not there. He said Ms X had capacity to choose what food she wanted. Ms A says the food is the issue which caused Ms X the most distress

18. over a long period of time at the care home. She says the care provider’s reply that Ms X would eat happily when she was not there is at odds with what Ms X said to her and the notes made by some care staff: “Said doesn’t like the food here. Wants her sister”.
19. The care provider says Ms A objected to Ms X being involved in communal activities or being subject to too much music as it said she felt this was sensory overload. In fact Ms A points out that she would often join Ms X at bingo or other weekly activities if she visited when they were taking place. Ms A notes however that her sister had always suffered sensory overload (which sometimes triggered epileptic fits when she was younger) and that the care provider had also noted this in Ms X’s DoLS assessment when he said that Ms X ‘tires very quickly and can experience sensory overload”
20. Ms A also complained frequently that Ms X’s teeth were not being properly cleaned or her eczema cream applied regularly. She has supplied photographic evidence for this. When she raised the concern about Ms X’s face with the care provider he said the condition of her skin did not look to him like a ‘flare-up’, as Ms A had described (although she says that clinical staff she showed the photographs to agreed it was a flare-up). The care provider also told Ms A that clinical staff had told him the care home should not be applying the eczema cream more often, but the clinical staff said they had never spoken to him about this.
21. In respect of X’s teeth, the care provider responded to Ms X’s complaint: “Teeth, she does brush her teeth with support every day, usually this is recorded all at the same time with personal care but you have refused to let staff brush her teeth first thing and insist on this after breakfast which is done daily. Sadly as a result on occasion this has not been recorded like it should be. Staff are also reluctant to go into her room when you are present as they feel you may make a complaint about something they do”. Ms A says she had never refused to let staff clean Ms X’s teeth before breakfast. She responded, “The staff have since told me that (Ms X) is refusing to have her teeth cleaned before breakfast, and that is (Ms X)’s decision not mine”.
22. The care provider said Ms X had capacity to make her own simple decisions, such as whether she wanted music playing or to be involved in interactions in the home. He said, “In our experience (Ms X) is enjoying life here, is enjoying interactions and activities in the home like movement to music and trying by her own choices the varied food in the home with success. It is very clear to me that this relationship as it stands clearly will not work and this is not down to any issues with (Ms X). I have contacted the duty team at Nottinghamshire Council and asked they urgently review (Ms X)’s placement here and have a meeting with us all.”
23. Ms A also raised a safeguarding alert with the Council in respect of the complaints she had made to the care provider.
24. The Council opened a safeguarding enquiry. Ms X’s social worker visited the care home along with Ms X’s Occupational Therapist to review her records. She spoke to the general manager. She discussed the alert with the safeguarding investigator and they agreed it did not meet the threshold for an investigation as there was no evidence that Ms X was at risk or experiencing significant harm. The social worker said there was a care review planned for August in any event. Ms A says the social worker must have seen from her inspection of the care home records and her repeated concerns that there was a valid complaint about the care home.
25. In September 2024 Ms A raised a complaint with the Council about the social worker. She said she had contacted the team numerous times asking for help but without a response. She said when the social worker had contacted her, it was to inform her that she was only allocated to carry out a review and not as a permanent social worker for Ms X. She said the social worker had told her Ms X was not being neglected as she suggested, and implied Ms A should not visit her so often.
26. The Council responded on 28 October. The Team Manager disagreed that the team had not contacted her as requested. He said it was not possible to allocate a permanent social worker and it was usual practice for a worker to be allocated for a review. He added that the senior social worker who was now involved continued to support Ms X in respect of a possible alternative placement. He agreed that the threat of eviction should not be used by the care provider as a response to concerns raised but said he needed to discuss the matter further with the senior social worker, who was on leave. He said the team was not trying to prevent a move if this is what Ms X and Ms A wanted. He added that the social worker had continued to work in Ms X’s best interests, and that the different approach she had from the previous social worker did not mean she was dismissive of Ms A’s views.
27. The Team Manager also said that in respect of the safeguarding referral, “after triaging this as a safeguarding referral requiring further action, a decision was made to progress it to the district team who were already involved in the care of Ms (X)”. He said it was considered likely the matter would require long term involvement and it was more sensible to allocate it to the district team.
28. The Team Manager wrote again on 11 November. He said he was satisfied that the senior social worker was taking Ms A’s concerns seriously and had frequently discussed them with care home staff and checked their records. However, he acknowledged that the case recording could have better reflected what had been discussed. He also acknowledged there were no notes of the review meeting in August and said this was unacceptable. He concluded that Ms X was known not to be happy with the placement and the team were now working towards finding an alternative.
29. Ms A complained again to the Council about its response and about the social worker’s failure to support her in her concerns. She added there had now been three meetings at the care home, partly to address her concerns, but no-one had recorded the meetings so there was no proper record of her concerns or what action might be taken in consequence.
30. An assessment in February 2025 showed that Ms X lacked capacity to make her own decision about her care, treatment and accommodation, and the Council started to approach different care homes for an alternative placement.
31. Ms A made a further complaint in April. She expressed concern that the February DoLS assessment had contained what she said were ‘malicious’ allegations against her by the care home staff and that council officers had let these go unchecked. She also complained she had made numerous (SAR) requests for her sister’s records to the care home manager which he initially ignored for two months. He then said he could not print off the records and suggested Ms A viewed them at the care home, but in fact he then printed copies for her.
32. The Team Manager responded. She said they had asked the Best Interest Assessors (who compiled the DoLS assessments) to reflect on how they recorded the views of others in the assessments. She said however “I would like to reassure you that the Best Interests Assessor merely records what is being said rather than substantiate the statements of the care home staff. The Best Interests Assessor is independent and balanced in their thoughts and I think this is reflected in the fact that the BIA was satisfied that you advocate for your sister hence, your appointment as Relevant Persons Representative (RPR)”. She added however, “We are going to ask all our assessors to reflect on how and what they record in ‘views of others’ in terms of capturing only what is relevant to the Deprivation of Liberty.”
33. The Team Manager said if Ms A was concerned the care home was being obstructive about the records this was a matter between herself and the managing authority (the care home) to resolve.
34. Ms A complained to us. She said the Council accepted everything the care home manager said and dismissed her concerns. She said although she would have wanted to move Ms X, because of the issues she had raised with the care home, she considered her sister was now too frail to move.

Analysis

35. The Council’s records show evidence that Ms A’s safeguarding alerts were taken seriously. The Council investigated her concerns, visited the care home to check the records and review the care provided. The officers were satisfied the concerns did not reach the threshold for safeguarding to proceed. That was not fault.
36. The Council agreed, however, to look at alternative placements.
37. There was no fault in the Council’s response to Ms A’s concern about the DoLS assessments. It was clear in the assessment that the views were recorded as comments made by staff and not the malicious allegations which Ms A perceived, although it indicated staff would be asked in future to confine their views to what was relevant to the DoLS assessment. That was an appropriate response.
38. The Council did however find evidence of poor record-keeping among the social worker team. It has apologised to Ms A for that and taken action in that respect. It accepts the social worker should not have implied to Ms A that she could not advocate on behalf of her sister. However, the repeated failure to minute meetings left Ms A concerned that her views were not being taken seriously and that as there was no contemporaneous record of her concerns, they could more easily be dismissed. This, together with her sense that the new social worker gave less weight to her views than the previous social worker, caused her additional anxiety.
39. There was a failure by the commissioned care provider to adhere to Ms X’s care plan in terms of monitoring her bowel movements which was also recommended by the clinical staff who saw her shortly after her move to the care home. It should have ensured that was carried out despite its view that all was well.
40. The care provider’s responses to Ms A’s concerns regularly seemed dismissive in tone and caused an abrasive relationship between them which was not to the benefit of Ms X’s care. I am not convinced that the Council’s suggestion to Ms A that she should resolve matters directly with the care home was by this stage the best approach to take: it appears to me the Council could have acted more positively, in Ms X’s interests, to broker an improved relationship.

Action

41. Within one month of my final decision the Council will review its requirements for the way in which meetings with care providers and relatives are minuted so that there is a clear record of concerns raised and actions for progress;
42. Within one month of my final decision the Council will review the way it can respond to tensions between care provider and relatives. In this instance the Council’s commissioned care provider failed to manage the relationship and there was a missed opportunity for the Council to act on Ms X’s behalf to improve the matter.
43. Within one month of my final decision the Council will acknowledge that failures to adhere to the care plan in some respects (for example, the failure to monitor bowel movements); decisions taken unilaterally by the care provider (the choice of room); and disputes about food and activity choices were a legitimate source of concern for Ms A and offer a sum of £500 which recognizes that distress;
44. Within one month of my final decision the Council will consider the impact the dispute had on Ms X and offer an additional £500 to her to acknowledge her distress at the ongoing dispute.

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Decision

45. I have completed this investigation as there was fault by the Council and its commissioned care provider which caused injustice. That can be remedied by completion of the recommendations at paragraphs 41 – 44 above.

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Investigator's decision on behalf of the Ombudsman