Summary: The Care Provider was at fault for not maintaining Y’s personal hygiene and for delaying its response to Mr X’s concerns about the matter. The Care Provider further failed to keep adequate records about the issue. It also failed to record how it assessed Y’s capacity when obtaining consent to use Y’s photograph for promotional purposes. The Care Provider agreed to apologise to Y to acknowledge the injustice these faults caused. It agreed to also carry out service improvements to improve its record keeping. There was no fault in the Care Provider’s accounting system or how it invoiced Y’s care fees.

The complaint

1. Mr X complained his relative, Y’s care provider failed in several key areas of their care. He said the provider:
• did not maintain Y’s personal hygiene;
• made multiple accounting errors; and
• took and used Y’s photograph for promotional purposes without obtaining consent.
2. He said these failings caused distress to Y and the family and wants the care provider to apologise, take responsibility, and offer compensation.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
4. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

7. I spoke to Mr X about his complaint and considered information he provided.
8. I considered the Care Provider’s response to my enquiry letter.
9. Mr X and the Care Provider had the opportunity to comment on the draft decision. We considered comments before we made a final decision.

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What I found

Relevant law and guidance

Fundamental standards of care

10. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers, inspects care services to assess if they meet the fundamental standards of care and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
11. 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 CQC has issued guidance on how to meet the fundamental standards below which care must never fall. This says that:
• The care and treatment of service users must be appropriate, meet their needs and reflect their preferences (regulation 9).
• Service users must be treated with dignity and respect (regulation 10).
• Premises and equipment must be kept clean and cleaning must be done in line with current legislation and guidance. Premises and equipment should be visibly clean and free from odours that are offensive or unpleasant. Providers should take action without delay when any shortfalls are identified.” (reg.15)
• Any complaint must be investigated and necessary and appropriate action must be taken in response to any failure identified (regulation 16).
• The Home must securely maintain accurate, complete and detailed records in respect of each person using the service. (regulation 17)

Personal care

12. The law defines ‘personal care and other practical support’ as ‘physical assistance (or prompting and assistance) given to a person in connection with:

• eating or drinking (including giving nutrition other than by mouth or alimentary canal);
• toileting (including in relation to menstruation);
• washing or bathing;
• dressing;
• oral care; or
• the care of skin, hair and nails (except for nail care provided by a chiropodist or podiatrist)’.
  (Health and Social Care Act 2008 (Regulated Activities) Regulations 2010)

Mental Capacity Act

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. 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. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.

Mental capacity assessment

14. An assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general.
15. Therefore, an assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

16. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.

Deprivation of Liberty Safeguards (DoLS)

17. 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.

The Care Provider’s support and care planning policy

18. The Care Provider’s terms and conditions says it should apply the principles of the Mental Capacity Act, and that residents should be included as much as possible in their care plan. Whilst a resident may not be able to make big decisions, they may still be able to make decisions about food, clothing, how they like to spend their time, or other everyday things that will be important to them.
19. Colleagues should ensure that if any resident expresses a view about their care and support, or if something has changed with the resident’s presentation following support, that this feedback is fed back immediately to senior team members so that actions can be taken in response.

The Care Providers complaint handling policy

20. When a written complaint is received, an acknowledgment must be issued within 48 hours or the next working day. An investigation plan will be created, and progress will be reviewed weekly to ensure the complaint is handled promptly. If the investigation will take longer than 28 days, the complainant must be informed. Once the investigation concludes, a full written response will be provided, including any apologies, findings, and details of actions taken as a result.

What happened

Background

21. Mr X complained on behalf of his relative, Y who has dementia. In May 2022, after a stay in hospital, Y was discharged into the care home. Although Y did not wish to be discharged there, they lacked the mental capacity to make this decision. The family decided on the placement in Y’s best interest.

Y’s personal care

22. In August 2024, Mr X first raised a complaint with the care home that Y was receiving poor personal care as the family had noticed unpleasant odours during visits.
23. In February 2025, Mr X raised another complaint with the care home, stating there had been no improvement in Y’s personal care. He said other residents had also commented to the family about unpleasant odours coming from Y, and the family had also found used incontinence pads left in Y’s room.
24. The Care Provider investigated and responded later that month. Investigators from the Care Provider said that after visiting the care home twice, staff were unable to detect any odour on Y. Records showed that Y often refused showers and instead accepted assistance with flannel washes only. The Care Provider noted it could not force Y to shower, even if it was in their best interests. It also explained that while Y’s room was cleaned regularly, Y hid used incontinence pads out of embarrassment.
25. After the Care Provider completed its investigation, Mr X suggested holding a best interest meeting to review Y’s personal care arrangements. Although the Care Provider agreed to hold this meeting, it confirmed the meeting did not go ahead. Mr X told us he was advised by social services to instead speak to Y’s lead nurse registered at Y’s GP directly to discuss any appropriate next steps.
26. Mr X said Y’s lead nurse stated that while the care home cannot force Y to have a shower, there are ways to encourage residents who are reluctant to receive personal care. Mr X stated a discussion between the lead nurse and the Care Provider in March 2025 helped and he recognised improvements in Y’s personal care immediately after the meeting.
27. The Care Provider further proposed the use of a pedal bin in Y’s room to encourage Y to dispose of the used items correctly instead of hiding them out of embarrassment. The Care provider suggested a trial to monitor the use of this bin.
28. The Care Provider accepted it could have done more to support Y with personal care. It did not however fully uphold Mr X’s complaint about the matter as it said it offered showers which Y declined.

The Care Providers use of Ys photograph

In September 2024, Mr X discovered that the care home had been using Y’s photograph in its promotional brochures. It is not clear when the photograph was taken. He complained, stating that neither he nor the family had given consent for Y’s image to be used in this way.

29. The care home provided a consent form which Y signed in September 2022 authorising the photograph to be taken and used for promotional purposes. However, Mr X explained that Y lacked capacity at that time, as evidenced by a Deprivation of Liberty Safeguards (DoLs) he said he and the care home agreed to apply for in August 2022. Mr X concluded that therefore the Care Provider should not have asked Y to provide consent. Instead, the care home should have sought consent from Y’s family.
30. The Care Provider responded that although Y lacked capacity for some care-related decisions, this did not mean Y was unable to make any decisions. It said Y had capacity at the time to consent to the use of the photograph and that Y appeared satisfied with the printed brochure when shown it.
31. Mr X asked the care home to remove Y’s photograph from all promotional material. The care home complied with his request and apologised for using the image.

The Care Providers billing process

32. In August 2024, Mr X also reported confusion with the care home’s four-weekly invoicing system as part of his complaint, saying invoices were not sent regularly and were often late. As a result, his monthly payments did not align with the outstanding amounts. This discrepancy led to the care home notifying him of a significant amount of outstanding care fees in February 2024 which he queried over subsequent months.
33. In the Care Providers response to Mr X’s complaint in February 2025, it found no fault with its invoicing and explained the four-weekly billing cycle was standard practice across the industry.
34. Following our enquiries, the care provider explained that it had since decided all residents’ invoices must be paid by direct debit. It said it had clarified the billing process to Mr X and that Y’s account was now up to date because payments were being collected automatically. The provider noted that since Y became a resident in the care home, Mr X generally paid regularly although his payments were often late. As a result, arrears began to build, and overdue reminders were sent in October 2023 and again in February 2024. Mr X queried the balance, but he cleared the debt in September 2024. Since October 2024, Y’s fees have been paid by direct debit, and invoices are sent to Mr X by email rather than post to provide him clearer oversight of payments.

My findings

The Care Providers response to Y’s personal care

35. Mr X first raised concerns about Y’s personal hygiene in August 2024, but there is no evidence the Care Provider took any action or began an investigation at that time. The Care Provider’s care planning policy which requires its staff to report and act on any concerns about a resident’s care or presentation immediately, however it did not start an investigation until Mr X made a second complaint in February 2025. This six-months delay was fault and caused injustice to Y and their family.
36. The Care Provider only partially upheld Mr X’s complaint, acknowledging it could have done more to encourage Y to shower while maintaining that Y had declined those when offered. Although the Care Provider told us it had apologised to Mr X, there is no evidence of an effective apology on file.
37. The care home is required to securely maintain accurate, complete, and detailed records for each person using the service. Y’s care records relating to personal care were not sufficiently detailed and did not show free-text entries to evidence what steps the care home took to encourage Y to accept personal care. This was fault. As a result, the Care Provider’s inadequate record-keeping creates uncertainty about the care Y actually received.

The Care Providers use of Y’s photograph

38. The Care Provider sought Y’s consent in 2022 before taking their photograph, which Mr X felt was inappropriate because he believed Y lacked capacity.
39. The Care Provider explained that, in line with its care-planning policy and the principles of the Mental Health Act, it aims to involve residents in their care as much as possible. While a resident may be unable to make major decisions, they may still be capable of choosing everyday preferences such as food, clothing, or how they spend their time.
40. In a meeting shortly before Y signed the consent form it was jointly with Mr X decided the care home would apply for DoLs. There is no evidence the DoLs was in place at the time Y signed the consent form or after the consent form.
41. Instead, the Care Provider said it assessed Y’s ability to make this specific decision and that Y gave permission for photographs to be taken. While it is unlikely we would find fault with this approach we would expect to see records of how it assessed Y at the time and arrived at this decision. The lack of records around how it assessed Y’s capacity at the time is fault and leaves uncertainty around how it arrived at its decision.
42. However, at Mr X’s request, the Care Provider stopped using Y’s photograph in promotional materials and apologised to him. It took appropriate action to remedy any injustice this may have caused Y.

The Care Providers billing process

43. Mr X raised several concerns about accounting issues on Y’s invoices and delays in sending the invoices to him. However, the issue appears to stem from the Care Provider billing every four weeks rather than monthly, which differed from Mr X’s expectations. After Mr X complained, the Care Provider began sending invoices to him by email instead of post, and payments are now taken by direct debit. The account now appears to be up to date. We have found no fault in the Care Provider’s accounting system, how it invoiced Mr X or how it managed any outstanding care fees.

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Actions

44. Within one month of the final decision the Care Provider agreed to take the following action:
1. Apologise to Y, Mr X and the wider family to acknowledge the distress and avoidable frustration caused by the delay in responding to concerns about Y’s personal hygiene and by the delay in putting measures in place to encourage Y to accept personal care. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Care Provider should consider this guidance in making the apology I have recommended.
2. Remind staff, through team meetings and/or training, to record situations where residents refuse care, including the steps taken to encourage support. Staff should also ensure they keep clear records of how a resident’s capacity was assessed when seeking consent.
45. The Care Provider should provide us with evidence it has complied with the above actions.

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Decision

46. I have found fault and made recommendations for the Care Provider to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman