Summary: Ms X complained a care home the Council commissioned for Mrs Y used restraint inappropriately, causing Mrs Y bruising and avoidable distress. We upheld the complaint. There was a failure to identify restraint was being used, a lack of staff knowledge, poor analysis of records and a failure to ensure the deprivation of Mrs Y’s liberty was authorised by the proper legal process. The care home’s complaint response was also inaccurate which caused Ms X avoidable distress and frustration. The Council will issue an apology, symbolic payments and provide evidence of improvements to the care home’s practices.

The complaint

1. Ms X complained about her mother Mrs Y’s care in Hunter’s Lodge Care Home (the Care Home) which the Council arranged and funded. She complained the Care Home caused bruising by restraining Mrs Y. Ms X said this caused Mrs Y avoidable distress and caused her to be frightened of receiving personal care.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended).
4. The Council arranged and funded Mrs Y’s placement under powers and duties in the Care Act 2014. We can investigate the Care Home’s service to Mrs Y.
5. 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)
6. 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)
7. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I have and have not investigated

8. Ms X complained to the Care Home and it provided a response which did not signpost Ms X to the Council or to the LGSCO. We decided to investigate the complaint, having consulted with the Council. We considered the Council, through its commissioned provider, had a reasonable opportunity to respond.

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How I considered this complaint

9. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

11. The Council’s adult social care complaint policy is a one-stage procedure which reflects national regulations and guidance. Complainants receive a response or investigation report proportionate to the issues raised in their complaint. Complaint responses are signed off by a ‘responsible person’ who is a senior officer of the Council. The reason for having a responsible person is to check on the quality of the response. The policy says everything reasonably possible to resolve the complaint should be done.
12. The Council’s policy recognises complaints may be made about care services which the Council commissions. It says:
• All registered services (care providers) must have their own complaints procedure and complainants are advised to use that procedure first
• Complainants have the right to progress their complaint to the Council if they remain dissatisfied (after using the care provider’s procedure).
13. If a council has reasonable cause to suspect abuse of an adult who needs care and support, it must make whatever enquiries it thinks is necessary to decide whether any action should be taken to protect the adult. (Care Act 2014, section 42). (We call enquiries under Section 42 ‘a safeguarding enquiry’ or ‘safeguarding investigation.’)
14. The Human Rights Act 1998 brought the European Convention on Human Richts into UK law. Article 5 protects the right to liberty and security of person, meaning people can only be deprived of their freedom in specific legal circumstances after proper procedures are followed. The Act requires all local authorities - and other bodies carrying out public functions, including care homes which are council-commissioned - to respect and protect individuals’ rights.
15. Our remit does not extend to making decisions on Human Rights Act breaches which is for the courts. But we can make decisions about whether or not a body has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
16. The Deprivation of Liberty Safeguards (DOLS) are a legal framework to protect people lacking mental capacity from being deprived of their liberty, usually in hospital or a care home. The DOLS make sure any restrictions are lawful, the least restive measure and necessary and in their best interests. A multi-disciplinary team considers applications to authorise a DOL using a prescribed assessment process which involves health and social care professionals.
17. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) set out the requirements for safety and quality in care provision. When investigating complaints about council-funded care placements, we consider the Regulations when determining complaints about poor standards of care. Those relevant to this complaint are:
• Regulation 12(i) says a care provider must provide care and treatment in a safe way including by working with health professionals to ensure the health and welfare of residents.
• Regulation 16 requires a care provider to investigate and take necessary and proportionate action in response to any failure identified.
• Regulation 17 requires a care provider to keep accurate, complete and contemporaneous records of care and treatment and decisions taken about care and treatment.
• Regulation 13 says people receiving care in a care home must be protected from abuse and improper treatment. Care must not be provided in a way that includes acts intended to control or restrain that are not necessary to prevent harm or are not a proportionate response to a risk of harm. Restraint includes any action which restricts the person’s freedom to move. An adult must not be deprived of their liberty without lawful authority.
18. CQC’s guidance on Regulation 13 says:
• Providers should use incidents and complaints to identify potential abuse and take preventative action, including escalation
• Where allegations of abuse are substantiated, providers must take action to redress the abuse and take necessary steps to prevent recurrence

What happened

19. Mrs Y has dementia and stayed in the Care Home for temporary respite care in May 2025. She went into hospital at the end of May and then to a different care home. Ms X complained to the Care Provider shortly after Mrs Y left. She also raised concerns about the Care Home’s restraint of Mrs Y with the Council’s safeguarding team. The Council began a safeguarding investigation.
20. Ms X said in her complaint that Mrs Y had bruises on her wrists and care workers said they needed three people to hold her during personal care. She went on to say Mrs Y was scared of care workers coming near her, was afraid of a man specifically and she had more bruises on her wrists, arms and forehead. The Care Home responded briefly to Ms X’s complaint in the middle of June saying:
• Adult safeguarding was aware
• CQQ were notified
• It had completed a full internal investigation
• The external bodies had reviewed the case and closed it.

The response to did not signpost Ms X to the Council or to the LGSCO.

Safeguarding investigation report

21. The Council conducted an adult safeguarding investigation between June and August. A safeguarding officer updated Ms X on progress by phone. The safeguarding officer also spoke to the Care Home’s manager and police. The police decided not to take any action.
22. The safeguarding officer asked the Care Home’s manager a series of questions about Mrs Y’s care. The manager advised:
• Mrs Y had become aggressive, this was a change for her, and she was resisting personal care. Two to three staff were needed to support her
• Mrs Y had a behaviour support plan and behaviour monitoring charts in place. Staff used loose holds to prevent harm.
• No referrals had been made for specialist healthcare
• Mrs Y was taken to hospital and had bruises on her arms, wrists and forehead.
• She sustained a bruise to the head when trying to head butt a bathroom door,
• Care noes indicated bruising to the upper arm which staff attributed to her defensive behaviour resisting personal care
• She resisted having continence pads changed.
23. The hospital confirmed the presence of bruising in the same areas of Mrs Y’s body. The Council’s DOLS team said it had received a request for a standard authorisation, but this was not completed.
24. The safeguarding officer considered the Care Home’s records including its incident forms for Mrs Y, noting:
• There was little information about matters leading up to the incidents of challenging behaviour (antecedents); there were no references to any form of restraint, although the Care Home accepted there had been restraint.
• There was no reference in the incident forms to bruising or headbutting the bathroom door. There was no evidence of body maps
• There was a lack of follow up actions, no external agencies were contacted for advice and support
• There were no mental capacity assessments or best interests’ decisions
• There was no record of family being contacted to discuss concerns
• Mrs Y was showing much distress and agitation; the actions taken were not proportionate to the level of distress
• There was no action taken to address repeated references to Mrs Y being wet and declining continence care. There were unaddressed risks to her skin integrity.
25. The Care Home’s manager denied using restraint on Mrs Y and said staff were not trained in holding techniques as Mrs Y was on a residential unit (as opposed to a nursing unit). The safeguarding officer advised the manager that loose holds were still restraint: if staff were placing their hands on Mrs Y to stop her moving her arms, this was restraint.
26. The safeguarding investigation report made the following findings:
• The Care Home accepted ‘loose holds’ were used and accepted this may have caused bruising. This point was substantiated
• The Care Home denied four carers were needed to support Mrs Y or that a male carer provided personal care. There were references to three carers and records were ambiguous. This point was inconclusive.
• Family said they observed carers reclining Mrs Y’s chair without explaining to her why they were doing this. The Care Home denied this. This point was inconclusive.
• The DOLS team was not contacted to discuss restraint, there was a request for a standard authorisation which was not yet approved and no urgent authorisation. This point was substantiated.
• There was no reference to Mrs Y sustaining bruises, headbutting the door and there were references to high levels of agitation. Actions staff took like offering a drink and reassurance were not proportionate to the level of distress. There were repeated references to Mrs Y refusing to be changed when wet. There was a lack of action taken to address the risk to her skin integrity. These points were substantiated.
• Family raised concerns the Care Home responded to their formal complaint saying the safeguarding investigation had been closed so they would not respond. The Care Home said they had responded to Ms X’s complaint. This point ‘appears not to be substantiated’.
27. The recommended action for the Care Home was:
1. It must contact the DOLS team for an urgent authorisation where any form of restraint (any physical means of restricting movement) and in the interim complete a Mental Capacity assessment and Best Interest decision, including consulting with family.
2. It must contact adult social care, the GP and/or mental health services where a resident is agitated and challenging and this is out of character, even when the resident is settling in.
3. It needs to introduce a more detailed assessment when admitting residents for emergency respite care.
4. Further training and supervision for staff around record-keeping of challenging behaviour was needed: ensuring details of antecedents and more detail about staff responses to include if any form of restraint is used including ‘loose holds.’ Injuries should be recorded (including bruising) and reported to adult safeguarding.
5. Further reviews by the Quality Assurance Team to address the concerns in the report.
28. The safeguarding report said the findings and recommendations would be shared with Ms X within five working days. Ms X told me she had not received any feedback from the Council about the safeguarding investigation.

Findings

29. There was fault by the Care Home which acted for the Council because in delivering Mrs Y’s care it:
• Did not involve relevant health and social care professionals in a timely manner or at all. Care was not in line with Regulation 12.
• Did not recognise its staff were restraining Mrs Y or complete a mental capacity assessment or make best interest decisions about using restraint or liaise with the DOLS team to ensure Mrs Y’s care had an authorisation in place which allowed the deprivation of her liberty. This was not in line with Regulation 13.
• Kept inadequate records, which was not in line with Regulation 17.
• The failure to identify ‘loose holds’ as a type of restraint meant the Care Home did not recognise it needed to ensure there was an urgent DOLS authorisation in place. This means the relevant checks and balances were not given appropriate oversight by the Council and its DOLS team. This was a failure to have regard to Mrs Y’s Article 5 rights.
30. The Care Home’s complaint response was woefully inadequate and fell far short of our expectations. The response:
• Was too brief when considering the issues Ms X had raised.
• Was factually incorrect as it said the Council had completed the safeguarding investigation when it was ongoing.
• Did not signpost Ms X to the Council and its complaint procedure

Complaint handling was not in line with the Council’s complaints procedure or with Regulation 16. It meant the Council had no oversight of the complaint and so did not have an opportunity to check whether it was an adequate and proportionate response to the issues raised or whether reasonable steps had been taken to resolve the complaint.

31. Communication with Ms X during the safeguarding investigation was appropriate and she received regular updates on progress. However, feedback about the outcome of the safeguarding investigation was lacking and this was a further fault. The report said Ms X would receive feedback, yet she did not receive any.
32. The fault I have identified caused Ms X avoidable distress of witnessing her mother receive poor care and uncertainty about whether Mrs Y’s care might have been delivered in a less restrictive manner had the Care Home referred Mrs Y to health services, communicated with her adequately, analysed the records properly and involved the DOLS team promptly.
33. The fault also caused Mrs Y avoidable distress and a loss in trust and confidence.

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Agreed Action

34. When a council commissions or arranges for another organisation to provide services, we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions. Where we find fault with the actions of the service provider, we can make recommendations to the council alone. Here we have found fault with the Care Home and make the following recommendations to the Council.
35. Within one month of my final decision, the Council will:
• Apologise. 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 in my findings.
• Make symbolic payments of £250 and £500 to Ms X and Mrs Y respectively.
• Provide documents to evidence the actions recommended in the safeguarding investigation report (as I have set out in points (a) to (e) in paragraph 27) have been completed.
• Deliver a briefing session for relevant staff of the Care Provider about what they need to do to comply with the Council’s adult social care complaint policy when responding to complaints about council-commissioned placements.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman