9. The law (Health Service Commissioners Act 1993) is explicit that a person needs to bring their complaint to us within a year of becoming aware of the problem. We cannot investigate complaints brought to us after one year, unless we consider there is a good reason. If a complaint is made to us outside this time limit, we consider the total duration of time taken to reach us by all parties. We give the person complaining the opportunity to provide an explanation for their delays in approaching us. We then go onto consider those reasons carefully to consider if they justify the delay and if we should put our time limit to one side. A decision to put the time limit to one side is for us to decide and is something we need to consider by law.
10. Our own policy (SMG) sets out that we consider the date a complainant could first raise a formal complaint is the date they knew there was a reason to complain. We refer to this as the ‘date of knowledge’ and recognise a complainant may not raise a complaint on this date for many reasons, for example, they were unwell in hospital, grieving, or other similar matters.
11. We understand Mrs E has concerns about the care and treatment her father, Mr U, received during his time at the Trust between 2 April 2020 and 10 June 2020. As there are variations to the dates of knowledge, we next go onto look at each complaint part to establish when these occurred.
12. Regarding the hernia diagnosis, Mrs E said the Trust failed to diagnose this between 2 April 2020 and 5 May 2020. We have taken Mrs E’ s date of knowledge of her concerns about this period of care as 5 May 2020, as this is when Mr U was finally diagnosed as having a hiatus hernia. With this in mind, we would have expected to receive this aspect of Mrs E’s complaint within twelve months from the date of knowledge, by 5 May 2021, for the complaint to be in time.
13. Next we went onto establish the date of knowledge regarding discharge. Mrs E complains that Mr U was discharged on 15 May 2020. The date of knowledge for this part of the complaint would be the 23 May 2020 as this is when Mr U’s health had worsened, and he was required to be readmitted. Therefore, for this part of the complaint to be in time, we would have expected to receive the complaint by 23 May 2021.
14. Regarding a failure to carry out an endoscopy, Mrs E says the Trust said Mr U was not a priority due to COVID 19. The latest date we can rely on for Mrs E’s date of knowledge would be 14 June 2020, as this is when Mr U died and when the family received a letter advising him to go to his GP if he continued to have issues with swallowing.
15. Treatment after diagnosis of delirium. For this part of the complaint, the latest date we can rely on as a date of knowledge is 14 June 2020 when Mr U died, as up until this point he had not received any treatment. With this in mind, for this part of the complaint to be in time we would have expected to receive the complaint by 14 June 2021.
16. We have seen no further information that would suggest the dates of knowledge to be later, or only becoming apparent significantly after events.
17. As such, we have a small variation in dates of knowledge ranging from 5 May to 14 June 2020.
18. Mrs E raised a complaint to the Trust on 8 June 2020.
19. The Local Authority Social Services and National Health Service Complaints (England) Regulations (the NHS Complaint Regulations) set out how complaints should be responded to. Section 14 of the NHS Complaint Regulations says that an organisation must respond to a complaint in a manner appropriate to resolve it, both speedily and efficiently.
20. Our Principles of Good Complaint Handling say that organisations should be ‘customer focused’. This means organisations should deal with complainants promptly and sensitively.
21. We can see the Trust provided its initial response on 5 August 2020, just short of two months from the date raised (8 June 2020).
22. Just under two weeks later, on 15 August 2020, Mrs E raised further concerns with the Trust regarding the lack of care and treatment her father was receiving from the Trust.
23. On 14 September 2020, the Trust provided its final response. In each instance we can see the Trust was prompt at providing complaint responses, and for the second follow up, Mrs E was prompt at acting on the final response to pursue again (ten days).
24. We are not made aware that any further action occurred. Twenty months later, on 26 May 2022, Mrs E then raised further concerns with the Trust. On 27 May 2022, the Trust said it would not look to re-open the complaint due to the time that had passed since it issued its final response in 2020.
25. Mrs E’s complaint was then made to us on 13 June 2022. By this time around 24 to 25 months had passed since the date of knowledge (May to June 2020), and the complaint was at least twelve months out of time for our consideration.
Complainant’s reasons for the delay
26. Our starting expectation is that a complainant is responsible for managing their complaint in a timely way. The law (Health Service Commissioners Act 1993) is explicit that a person needs to bring their complaint to us within a year of becoming aware of the problem.
27. To help us reach a decision on the time limit, we have asked Mrs E about the twelve-month delay to raise further concerns with the Trust, and why it took her one year and nine months to bring her complaint to us after the Trust’s issued its main final response on 14 September 2020.
28. Mrs E tells us that between 14 September 2020 and May 2022 she was moving house, also her sister had two miscarriages. Further, she needed to support her mother following the death of Mr U. Also, Mrs E continued to work full time during this period and the family needed time out to process what happened and focus on day-to-day life.
29. Mrs E also said that she was told she had two years to bring her complaint to us.
30. As we have established earlier, the expectation is a complaint must be made to the Trust and then to PHSO within one year from the date of knowledge. Where there are reasons that have prevented a complaint being raised, on an individual basis, we will consider these to reach a view if they justify the delay.
31. Firstly, on our website, it is detailed clearly that there is a time limit to raising a complaint. Similarly, our customer call centre is available to answer questions and provide advice on complaining. Had a call been made, or the website referenced, Mrs E would have known there are time limits of twelve months to complaining, and not two years.
32. Next we have gone onto consider if moving house, her sister’s miscarriages, support for mother, working full time, and time out to process and grieve justify the delay.
33. When a person has reason to complain, it is their responsibility to manage that in a timely way, though we recognise family support for Mrs E’s sister, house move, and working full time may have an impact, we do not consider these justify twelve month delay. But had we seen attempts to call upon support from a third party such as Citizens Advice, the voluntary third sector, a recognised advocacy service, or even engaging with our services and then delay still occurring, we may have been more minded to consider these aspects. This is because they demonstrate Mrs E was attempting to make the necessary complaint and seek support, but was still experiencing delays.
34. It is our view these reasons do not justify a period of twelve months inactivity.
35. Next we went on to consider aspects of grief. We recognise grief can manifest in many ways for an individual, for some this can be a relatively short period and for others a lifetime of adjusting. It is not for us to say how long a person should grieve for. In this instance, we can see that Mrs E was indeed active and engaged in pursuing a complaint up to a final response on 14 September 2020. It is at this point we would have expected the complaint to be brought to us. Here we see the complaint then sat dormant until Mrs E picked this back up and continued pursuing the Trust around May 2022. Had suitable enquiries been made in September 2020, while still in an active phase of complaining, the complaint may have been with us within time.
36. Though we fully empathise with the impact of grief, it is our view following the final response, the opportunity to bring the complaint to the Ombudsman was missed.
37. For the reasons we have provided, we consider the complaint is out of time and have decided to take no further action.