Date of decision: 12 December 2025
Summary
Mr X complained that Borough Care Ltd failed to maintain proper personal hygiene for his elderly relative Y, who has dementia and lives in residential care.
The Care Provider took six months to investigate the family’s concerns about unpleasant odours and used incontinence pads left in Y’s room. The Care Provider also failed to keep adequate records documenting what steps it took to encourage Y to accept personal care when Y refused showers.
Additionally, the Care Provider did not properly record how it assessed Y’s capacity when obtaining consent to use their photograph for promotional purposes.
What happened
In May 2022, Y was discharged from hospital into the care home. Although Y did not wish to be discharged there, they lacked the mental capacity to make this decision, so the family decided on the placement in Y’s best interest.
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. The Care Provider took no action and did not begin an investigation at that time.
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.
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.
After the Care Provider completed its investigation, Mr X suggested holding a best interests 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 was advised by social services to instead speak to Y’s lead nurse registered at Y’s GP directly to discuss appropriate next steps.
In March 2025, Mr X said Y’s lead nurse stated that while the care home could not force Y to have a shower, there were ways to encourage residents who were reluctant to receive personal care. A discussion between the lead nurse and the Care Provider helped, and Mr X recognised improvements in Y’s personal care immediately after the meeting.
The Care Provider further proposed the use of a pedal bin in Y’s room to encourage Y to dispose of used items correctly instead of hiding them out of embarrassment. The Care Provider suggested a trial to monitor the use of this bin. The Care Provider accepted it could have done more to support Y with personal care, but did not fully uphold Mr X’s complaint about the matter as it said it offered showers which Y declined.
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.
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 which 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, but should have sought consent from Y’s family.
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. Mr X nevertheless 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.
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.
In the Care Provider’s 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. Following the Ombudsman’s enquiries, the care provider explained that it had since decided all residents’ invoices must be paid by direct debit. It clarified the billing process to Mr X and 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 had been paid by direct debit, and invoices were sent to Mr X by email rather than post to provide him clearer oversight of payments.
What was found
The Care Provider’s care planning policy required its staff to report and act on any concerns about a resident’s care or presentation immediately, but it did not start an investigation until Mr X made a second complaint in February 2025. This six-month delay was fault and caused injustice to Y and their family.
Although the Care Provider told the Ombudsman it had apologised to Mr X, there was no evidence of an effective apology on file.
All care homes are 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, and as a result, the Care Provider’s inadequate record-keeping creates uncertainty about the care Y actually received.
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. In a meeting shortly before Y signed the consent form, it was jointly decided with Mr X that the care home would apply for Deprivation of Liberty Safeguards. There is no evidence the DoLs was in place at the time Y signed the consent form or after the consent form. 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 the Ombudsman considered it unlikely fault would be found with this approach, there should be 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 was fault and left uncertainty around how it arrived at its decision. However, at Mr X’s request, the Care Provider stopped using Y’s photograph in promotional materials and apologised to him, taking appropriate action to remedy any injustice this may have caused Y.
The Ombudsman found no fault in the Care Provider’s accounting system, how it invoiced Mr X or how it managed any outstanding care fees.
In 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 his photograph for promotional purposes.
The Care Provider agreed to apologise to Y to acknowledge the injustice these faults caused. It also agreed to 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.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
This decision reveals several gaps in practice that bear directly on legal obligations to people with dementia living in care homes.
First, capacity assessment and the consent process. The Ombudsman noted that Y signed a photographic consent form in September 2022, approximately one month after Mr X and the provider had jointly agreed to seek a Deprivation of Liberty Safeguards authorisation.
Under the Mental Capacity Act 2005 and its supporting Code of Practice, capacity is both issue-specific and time-specific. Where a person is assessed as requiring a DoLS authorisation because they lack capacity to decide where to reside and lack capacity to consent to the restrictions inherent in their care, those findings have clear implications for contemporaneous decisions about consent to image use for commercial purposes, but are not determinative. The provider asserted that Y had capacity to consent to the photograph despite lacking capacity to decide on residence, yet the Ombudsman recorded no evidence of how that specific capacity determination was made or documented. Mental Capacity Act principles require decision-specific capacity assessments supported by a reasoned and recorded evaluation of the person’s ability to understand, retain, weigh and communicate a decision on the matter in question. Absent such records, any purported consent is vulnerable to the charge that the presumption of capacity was applied uncritically or that incapacity in one domain was wrongly assumed not to affect related decisions.
The family’s objection was well-founded in law: if Y lacked capacity, consent should have been sought from those with authority to act in Y’s best interests.
It is not clear from the report whether Mr X or any other family member held a Personal Welfare Deputyship or lasting power of attorney entitling them to make welfare decisions for Y. Mr X’s earlier suggestion of a best interests meeting suggests there was no Personal Welfare Deputy in place. If that was the case then a best interests meeting (and possible application to the Court of Protection in the absence of agreement) would have been required if the provider had still wished to use the photographs. The provider’s failure to document the reasoning that led it to treat Y as having capacity in this context exposes a procedural shortcoming of the kind routinely criticised in case law concerning the proper application of the Mental Capacity Act framework.
Likewise regarding the hygiene concerns: the Care Provider noted it could not force Y to shower, even if it was in their best interests – and we agree that it would be shocking to force a person with dementia to shower just for the sake of being cleaner.
However, community care law has long established that care planning is not simply a matter of offering a service and recording refusal; it requires active steps to understand, document and address fluctuating or contested needs and consider the proportionality of ‘forcing’ someone.
Where a person with cognitive impairment presents with hygiene difficulties that attract complaints from relatives and comments from other residents, the provider’s duty extends beyond passive recording of refusal. It must document proactive attempts to understand the reasons for refusal, trial alternative approaches, involve appropriate professionals such as the GP or specialist nurse, and where capacity to refuse personal care is in doubt, follow a structured best interests process.
The suggestion of involving the practice nurse was a pragmatic one, which produced results, but to our mind this raises a question as to whether the Care Home had the necessary training to support people who have dementia with their personal hygiene.
The fact that a substantive improvement in Y’s hygiene was achieved shortly after the GP practice nurse became involved suggests that the provider had not exhausted available professional and practical responses during the six months preceding that intervention. The absence of a detailed, dynamic care plan addressing Y’s personal hygiene needs amounts to a breach of the duty to keep accurate and complete records and, inferentially, of the underlying duty to plan and deliver care in a manner genuinely responsive to the individual’s assessed needs and circumstances.
The report refers to a Deprivation of Liberty application that Mr X and the care home agreed should be made in August 2022. The report states that ‘There is no evidence the DoLs was in place at the time Y signed the consent for or after the consent form.’ If there were no DoLs in place then the deprivation of Y’s liberty was unlawful, and we think X and the wider family should have been made aware of this. According to the report Y was discharged to the care home after a stay in hospital but did not wish to be discharged there and the family decided on the placement in Y’s best interests. An urgent or standard authorisation for the deprivation of Y’s liberty should have been applied for at that stage, and would have provided a route to challenge the care arrangements on Y’s behalf.
The report refers to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 which set out the fundamental standards and to CQC guidance on how to meet the fundamental standards. This says that:
- The care and treatment of service users must be appropriate, meet their needs and reflect their preferences.
- Service users must be treated with dignity and respect.
- Premises and equipment must be visibly clean and free from odours that are offensive or unpleasant. Providers should take action without delay when any shortfalls are identified.
- Any complaint must be investigated and necessary and appropriate action must be taken in response to any failure identified.
- The Home must securely maintain accurate, complete and detailed records in respect of each person using the service.
We note that the decision was to be shared directly with the regulator (the CQC). There were serious concerns about the quality of personal care planning and record-keeping in this case. The CQC 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.
Third, timeliness and proportionality in responding to safeguarding and care quality concerns. The provider did not investigate Mr X’s initial complaint in August 2024 and took no recorded action until he complained again in February 2025. This six-month inaction was likely to have been contrary to the CQC guidance and sits uncomfortably with duties of responsiveness and with the safeguarding principle that concerns affecting a vulnerable person’s dignity, health and wellbeing must be addressed without delay.
It concerning that when Mr X raised the matter with Social Services, they do not appear to have considered raising a safeguarding concern, despite the appearance of neglect, nor do they seem to have advised Mr X about the possibility of a report to the CQC, or of a DoLS challenge – and the investigator says nothing about that stance.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Borough Care Ltd (25 002 861) 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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