Summary: Mrs F complained on behalf of her grandmother, Mrs B, about the quality of her care in Mulberry Manor, a council commissioned care home. We found no fault in the care provided to Mrs B. The Council failed to respond to Mrs F’s complaint which caused her some time and trouble. It has agreed to apologise to Mrs F to remedy that injustice and make a service improvement in relation to its complaint procedures.

The complaint

1. Mrs F complained on behalf of her grandmother, Mrs B, about the quality of her care in Mulberry Manor, a council commissioned care home. Mrs F says there was poor hygiene, she was given food she did not like, carers spoke to her in an uncaring tone and they failed to manage Mrs B’s behaviour. She also complained that the Council did not help when she contacted it about her concerns.
2. Mrs F said the matter caused deterioration in Mrs B’s wellbeing and distress to the family. She wants the care provider to receive training and make service improvements.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the NHS. (Local Government Act 1974, sections 25 and 34(1), as amended)
5. We may investigate complaints from the person affected by the complaint issues, or from someone they authorise in writing to act for them. If the person affected cannot consent, we may investigate a complaint from a person we consider to be a suitable representative. (Local Government Act 1974, section 26A or 34C)
6. 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. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7))
7. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), 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(1), as amended)

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What I have and have not investigated

9. I have not investigated Mrs B’s care for the period 10 January to 2 February 2025. This is because at that point her care was funded by the NHS. As set out in paragraph 4, we cannot investigate the actions of the NHS or services provided on its behalf.

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How I considered this complaint

10. I spoke to Mrs F about the complaint and considered the information she and the Council sent and relevant law, policy and guidance.
11. Mrs F and the Council 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

Relevant law and guidance

Care and Support

12. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.

Mental capacity

13. 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. A key principle of the Act 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.

Fundamental Standards of Care

14. 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 Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall. The standards include:
• Person-centred care (Regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences. Providers must involve a person acting on the service user’s behalf in the planning of their care and treatment.
• Dignity and respect (Regulation 10): Service users must be treated with dignity and respect and in a caring and compassionate way.
• Safe care and treatment (Regulation 12): Providers must do all that is reasonably practicable to mitigate risks to the service user’s health and safety. The provider must have arrangements to take appropriate action if there is a clinical or medical emergency.
• Safeguarding from abuse (Regulation 13): Service users must be protected from abuse and improper treatment, this includes neglect.
• Food and drink (Regulation 14): Service users must have enough to eat and drink to keep them in good health while they receive care and treatment.
• Premises and equipment (Regulation 15): Providers must make sure that the premises where care and treatment are delivered are clean, suitable for the intended purpose, maintained and where required, appropriately located.
• Complaints (Regulation 16): The provider must have a system in place to handle and respond to complaints.

Safeguarding

15. 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 they cannot protect themselves. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (Care Act 2014, section 42)
16. The Council’s contract compliance team checks the care and support services the Council commission to ensure that the services are safe and in line with regulations and the Council’s standards. If standards are not met, the Council gives the care provider an improvement plan.

Complaints procedure

17. The Council’s 2024 adult care services complaints procedure says a person may complain to the Council about poor service from someone providing a service on the Council’s behalf. The Council aims to respond within 20 working days.
18. If a person remains dissatisfied, they may come to the Ombudsman or ask the Council to continue considering the complaint. In this case a senior manager or external person will investigate and respond within 45 working days.

What happened

19. Mrs B has dementia and other health conditions. She had been assessed as not having capacity to make decisions about her care or where she should live. Mrs B had been living at home but had been admitted to hospital following a fall. The hospital arranged for Mrs B to be discharged to Mulberry Manor care home (“the Home”) on 10 January 2025. The NHS funded the care until 2 February; it made a referral to the Council to assess Mrs B’s care and support needs.
20. A social care assessor from the Council visited Mrs B on 3 February and spoke to the family.
21. The care and support assessment determined that Mrs B required residential care. It said Mrs B needed support to manage nutrition and hydration, including being prompted to eat, monitoring due to weight loss, and support with personal care and managing continence. Mrs B had reduced mobility and was at risk of falls. The assessment says Mrs B could become agitated and had been asking to return home, the assessor asked for this to be recorded in Mrs B’s daily care notes.
22. The Home’s care plans say Mrs B could become anxious, distressed and resistant to care, particularly when she wanted to go home, so carers were expected to reassure her, use distraction, and record behaviours. If Mrs B refused care, carers should try again later. The care plan noted Mrs B had a small appetite, so carers must prompt and encourage intake, offer food and drinks little and often, provide alternatives and snacks she preferred and escalate concerns to dietetics.
23. The Home’s daily care records show that carers provided personal and continence care and assistance with meals and drinks, but that Mrs B frequently declined or resisted care and often declined meals or ate and drank very little. Mrs B would say that the Home was trying to poison her and keep her prisoner. The notes record that carers continued to offer care, documented refusals, and tried again later.
24. On 1 March it was recorded that Mrs B had lost about five and a half kilograms of weight since she had been admitted to Mulberry Manor. The Home referred Mrs B to the dietician.
25. Mrs F emailed the Home on 3 March raising concerns about Mrs B’s personal care. She said Mrs B was not being cleaned or having her pad changed often enough, was often dirty, with a strong smell of urine and dirty hands and nails. She said she had found Mrs B soiled with faeces, red and sore, and with scabbed legs, raising concerns about infection. The Home replied that Mrs B had had two baths but could get distressed when carers tried to provide continence care and had refused to soak her nails.
26. The Council visited Mrs B on 5 March and spoke to Mrs F about her concerns. The Council said it had not seen evidence that Mrs B was not being cared for.
27. The care notes show Mrs B was often agitated and could have challenging behaviour such as shouting or banging furniture. Carers sought to reassure her by staying with her, speaking calmly, giving space, redirecting her attention, enabling her to rest, asking family to talk to her and they escalated concerns to senior staff.
28. Mrs F says when she visited on 14 March, she found Mrs B dirty and in soiled continence wear. The daily records for that day say continence care had been offered at about 10am and 11.30am but Mrs B had refused it. Mrs F gave Mrs B a shower and nail care. She also cleaned faeces from Mrs B’s walker.
29. Mrs F emailed the Home again raising concerns. In response, the Home said Mrs B could wash her hands without support. Carers encouraged washing and personal care but could not force care. Staff would try again later if Mrs B refused and made continence checks at least every four hours.
30. The Council’s contract compliance team made an unannounced visit to the Home following other concerns it had received about cleanliness in the Home. The Council found a poor level of cleanliness around the Home. The Home said this was due to staff absences. An improvement plan was implemented. The Council did not find evidence that residents were abused or neglected.
31. There was an incident where Mrs B refused to allow carers to enter her room. Over the next few weeks, Mrs B continued to refuse care and was sometimes agitated, with violent outbursts, occasionally hitting staff or using objects as weapons. She often refused to eat or ate very little. The Home referred Mrs B to the community mental health team on 25 March.
32. On 3 April, Mrs B’s weight had increased by about half a kilogram. The Home spoke to the dietician who advised offering foods little and often and to give fortified foods. The dietician discharged Mrs B.
33. Mrs B continued to have episodes of agitation and challenging or violent behaviour. She fell one night and was admitted to hospital for a day.
34. Medication was prescribed by the mental health team and there was a mental health assessment on 15 April. The Home said it could not manage the risks Mrs B was posing to herself and others. Following further incidents, the mental health team advised that Mrs B should be assessed under the Mental Health Act 1983. This was done on 29 April and Mrs B was admitted to hospital for treatment under Section 2 of the Act. She was later discharged to a different care home.
35. In May, the Council carried out an infection prevention and control audit at the Home. An action plan was implemented requiring improvements to waste management and hand hygiene.

Mrs F’s complaint

36. Mrs F approached the Ombudsman but we were unable to investigate as she had not yet made a formal complaint to the Council.
37. Mrs F complained to the Council on 2 July about Mrs B’s care in the Home. She said there had been neglect, poor care, and failures in hygiene, continence care, nutrition, dignity, and staff conduct, which had led to significant deterioration, weight loss, distress, and injuries. Mrs F said the complaints she had made to the Home were not properly addressed. Mrs F said her grandmother was compliant with care when family provided the care and staff spoke to Mrs B in an uncaring manner.
38. The Council spoke to Mrs F. It said she had raised general issues around standards of care related to hygiene and nutrition at the Home. The Council would monitor the Home but could not share any feedback about this with Mrs F due to data protection as Mrs B was no longer living at the Home.
39. In response to my enquiries, the Council acknowledged it had not dealt with Mrs F’s concerns as a formal complaint about Mrs B’s care but as a general concern about standards at the Home.

My findings

40. The Home’s records show Mrs B frequently refused food, personal care and continence care. This was often linked to her being asleep or distressed and agitated. Mrs B felt she was being kept prisoner and that staff were trying to poison her. I am unable to comment on how staff spoke to Mrs B but I have not seen evidence that her refusals were caused by the way staff approached her care or by the quality or type of food.
41. There are notes of alternative foods being offered. When Mrs B lost weight, the Home referred to the dietician and followed the advice given on 3 April.
42. While an unannounced visit by the Council identified poor environmental cleanliness in parts of the Home, this is not evidence that carers failed to provide Mrs B with personal care in line with her care plan. The records show that staff continued to offer personal care, documented refusals, and tried again later. There is no evidence that Mrs B’s care was neglected or that she was left for long periods without attention. When Mrs B was agitated or refused care, there is evidence that staff tried distraction, reassurance and leaving Mrs B to settle.
43. Mrs B did not have the mental capacity to make decisions about her care. In this situation we expect care providers to record refusals, continue to offer care, foods and fluids, review care plans, and escalate to the GP or other health professionals. Force should not be used, as restraint is only lawful in exceptional, proportionate circumstances.
44. When Mrs F raised concerns with the Home, although it did not register this as a formal complaint, it replied to her emails in a timely way and addressed her concerns. Mrs B’s care plans reflected Mrs F’s requests in relation to foods and distracting Mrs B.
45. Having reviewed the Home’s records, I do not find they show acts of omission or neglect that amount to fault. The Home followed Mrs B’s care plans, continued to offer personal care, food and drink, recorded the refusals and kept fluids and nutrition charts. It contacted the GP, dietician and mental health team for advice. These are the actions a care home should take. Whilst Mrs B was agitated and often did not have care or did not eat and lost weight, I do not find this was caused by fault by the Home.
46. The Council received concerns about standards of cleanliness in the Home. It made an unannounced visit which was followed by an improvement plan and an infection control audit. There is no fault in the way it responded to the concerns. The Council did not find evidence of abuse or neglect of residents.
47. When Mrs F complained to the Council on 2 July, it failed to register this as a formal complaint about Mrs B’s care. This was fault which caused Mrs F time and trouble as she had to bring her complaint to the Ombudsman to have it investigated.
48. The Council was concerned that it could not share information with Mrs F due to data protection. I note that the Council has introduced a new complaint procedure in April 2026. This says it will not accept complaints “made on behalf of individuals who have no knowledge of the complaint being made or have not agreed to one being submitted”. But the Local Authority Social Services and NHS Complaints (England) Regulations 2009 do not require a person to have capacity to complain and they allow complaints to be made by a representative. Our Complaint Handling Code says councils should give individuals the opportunity to have a suitable representative deal with their complaint on their behalf. Whilst the Council’s procedure refers to offering advocacy, it should allow a person without capacity to raise complaints about their care in a council commissioned care home, even if the person has since left the home.

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Action

49. Within a month of my final decision, the Council has agreed to:
• Apologise to Mrs F for not responding to her complaint.
• Review its complaint policy to ensure people without mental capacity may raise complaints.
50. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
51. The Council should provide us with evidence it has complied with the above actions.

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Decision

52. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman