Effect of delay in providing fit note on financial position, mental health and well-being
20. We first establish what should happen according to standards, guidance and law. Next, we look at what did happen to see how different this is from what should have happened. Where the level of service or care is not consistent with what we would expect to see, we refer to this as ‘maladministration’ (fault). Then, we see whether we can link the injustice and the impact. If we can, we try to identify what the organisation has done to accept or put right the failing and whether that is enough.
21. Although the government and British Medical Association are clear about the issuing of fit notes, there are no national guidelines about when fit notes should be issued.
22. Mr A first applied for UC in April 2021. We note DWP is not part of our consideration.
23. On 22 June 2021, Mr A asked the Practice for a fit note for his UC application.
24. After about three months, on 14 September, Mr A first asked the Practice where his fit note was, as he had not yet received it. It was subsequently approved by the Practice and issued on 16 September 2021.
25. On 16 May 2022, Mr A received a letter notifying him of his total benefits award. Mr A was approved for benefits between 20 October 2021 and 19 April 2022. Mr A says he was denied benefits for the period June 2021 to September 2021, as DWP would not accept the backdating of a fit note.
26. Mr A complained to the Practice on 17 September 2021. He received a first response letter on 14 October 2021 and a final response on 4 November 2021. In the complaint response, the Practice admits a failing. The Practice does not cite any IT or computer failing but describes the delay as an administrative error, a human oversight. The Practice goes on to apologise for this error.
27. Mr A says the ‘unnecessary delay’ in issuing the fit note has impacted his financial status. He says because DWP cannot accept backdated fit notes he missed benefit payments worth around £1,000.
28. We tried to understand why Mr A did not follow up his request for the fit note during the period June to September. Mr A says he did not know how the benefits process works and he was seeing his social prescriber and was waiting for them to provide help and support.
29. Through the Practice’s own admission of an oversight or human error, we have identified a failing and injustice in the form of loss of income and stress and anxiety. We have gone on to consider whether the injustice can be linked to the failing. We use our severity of injustice scale to help with this. The scale gives us open and transparent guidance on reaching decisions on the severity where a fault has occurred.
30. We recognise this happened over approximately three months, which is quite a short period. On our severity of injustice scale, a degree of distress from which the claimant would be expected to recover and certain inconvenience from a one-off occurrence (not multiple failings) experienced over a short period would be considered a level two degree of severity, which is not high.
31. We cannot specify a level of distress that the Practice’s human error may have caused Mr A, although we recognise it would have contributed. From speaking to Mr A about the injustice, we understand the error made his already known mental health condition worse.
32. We also note from June to September there is no record Mr A tried to get his note. By this, we mean steps that may have increased his frustration and annoyance, such as repeatedly asking for the note but not getting a result. The first time Mr A asked about the note, the Practice issued it fairly quickly.
33. Here, the NHS Constitution is relevant. The NHS Constitution is a set of principles for the health service that also describes what is expected of a patient. The patient domain section of the NHS Constitution explains it is the individual’s responsibility to contribute to managing their wellness and engagement with the service. We interpret this to mean that, in this case, Mr A was responsible for following up his request for a fit note. For instance, we would have expected Mr A to get in touch quickly and find out what was happening after one or two weeks had passed and he had still not received the fit note. Instead, Mr A did nothing for a period of three months.
34. As we have established, Mr A explains he did not follow up his request because he did not understand how the benefit system works. We feel what happened was less to do with the benefit system and more to do with getting a fit note from the Practice. We have considered Mr A’s reasoning here, but we are not convinced ‘not knowing’ justifies the delay. We recognise the Practice did not process the note, but Mr A knew he was waiting for the note as part of a wider benefit claim and took three months to ask for it. We think (based on the NHS Constitution) Mr A was responsible for following up his request for a fit note sooner, and so we do not feel the whole three month delay was attributable to a failing on the part of the Practice. We recognise the Practice failed to issue the note, but if Mr A had followed up his initial request sooner, the delay might have been a lot shorter.
35. Next, we went on to consider the financial losses.
36. Mr A says he would not have incurred a loss of UC if the fit note had been issued on time. However, although we recognise the decision not to backdate is a matter for DWP and its policy provides a means of challenge and appeal to a decision, here, if Mr A had acted to reduce any delay in the Practice’s response, he would not have had to take DWP’s challenge route. DWP’s challenge route would have meant DWP would have reconsidered its decision on not backdating and could have involved appealing DWP’s decision on the payment and payment period. We can see this was communicated to him in DWP’s award letter.
37. As we understand it, Mr A chose not to challenge DWP’s policy on not backdating. The process of challenge and appeal is outlined in DWP guidance.
38. We have to show how an injustice stems from a claimed fault and to be able to say with certainty the injustice can be linked to the claimed fault.
39. We would only reasonably expect Mr A to challenge a decision if he believed DWP’s decision was incorrect. We have seen no sign Mr A considers DWP’s decision to be unfair. He simply feels DWP would have made a different (and more beneficial) decision if the GP had issued the fit note earlier. As such, it is our view his claimed injustice is linked to the GP’s actions, not DWP’s decision.
40. As this was also a joint claim with Mr A’s partner, we recognise in making the award decision DWP would have had to consider a range of factors and make enquires unrelated to the fit note, such as Mr A’s partner’s income and circumstances. As such, we are unable to say for sure the fit note would have been the sole significant factor affecting Mr A’s benefit claim.
41. We also recognise the delay put Mr A in a position of managing a claim with a backdated fit note, which may not have happened if the error had not occurred. But we also recognise, with the note not being issued, Mr A contributed to the delay by not pursuing his request for it.
42. Thus, although we recognise the frustrations and hardship claimed, we cannot say with certainty the actions of the Practice caused an injustice of £1,000.
43. Additionally, we do not know what effect an earlier fit note would have had on Mr A’s claim for UC. There are several factors involved in eligibility for UC so, even if the fit note had been issued earlier, DWP’s decision on Mr A’s eligibility start date may have been the same. In any event, if Mr A had followed up his initial request for the fit note (which we would reasonably have expected him to do), he would likely have received it earlier. While this might not have removed the injustice entirely (he would not have needed to follow up his initial request had the Practice done things properly), it would have significantly reduced the extent of the injustice (i.e. frustration, inconvenience, etc.).
44. Given we saw no activity from Mr A for three months, it is our view the distress and inconvenience were not significant enough to affect Mr A’s day-to-day functioning. Also, as we have outlined, we do not know what other factors might have influenced DWP’s final benefit decision for Mr A.
45. Based on our severity of injustice scale, even if the initial distress caused did increase, it is our view it is level two because it lasted for a relatively short time.
46. Typically, injustices at level two arise from relatively low-impact failings. Low-impact failings often produce a degree of distress, frustration and inconvenience but will not usually have a significant lasting impact, defined as lasting for a period from 1 to 2 weeks up to about 6 months.
47. We do not think the injustice in Mr A’s case reached level three on our severity of injustice scale. Level three injustices are experienced over a significant period and may affect a person’s ability to live a relatively normal life.
48. Next, we reviewed the GP’s response and whether the Practice has done enough to put right its failing.
49. Informed by our Complaints Framework and our Principles for Remedy, we would expect an organisation to issue a meaningful apology, accept responsibility for its mistake and put things right.
50. In its response, the Practice provided an apology and accepted responsibility for its mistake. The GP also explained the reason for the delay. Considering the injustice we have outlined, and based on the ‘remedy’ section of our Complaints Framework, we consider the Practice’s response to be fair and proportionate given the emotional worry and frustration caused.
51. As this was a one-off human error and not something involving a whole system or organisation, we do not think there is more to learn or changes to policy or process are proportionate to the injustice. In line with section 7.71 of our Policy, financial remedy is intended to put right the injustice resulting from fault and is not compensation for the fault. Considering all these factors, and based on our severity of injustice scale and our Principles for Remedy, we consider an apology at this level of injustice to be appropriate.
52. We also run checks on all complaints we receive to identify themes that might indicate potential ‘systemic’ or organisation-wide failings. Here, we found no signs of organisation-wide failings and we note the Practice described this case as a human error.
53. Therefore, for the reasons outlined above, we will take no further action on this complaint.
Unprofessional communication and behaviour by the GP during the meeting on 21 October 2021
54. GMC guidance on Good medical practice is relevant here to tell us what should happen. It says clinicians ‘must be polite and considerate’ and respect patients’ dignity.
55. Mr A says during the meeting on 21 October 2021 the GP failed to communicate professionally. Mr A says his understanding was the meeting was to clarify the delay in providing him with a fit note and to talk through other issues. Mr A says the GP was ‘confrontational’ during the meeting and Mr A felt ‘ambushed’ and he was treated aggressively.
56. Mr A says he was verbally attacked during the meeting. Mr A left the meeting early, as he was feeling distressed and anxious.
57. In reaching our decision, we considered the medical records, including the medical notes from the meeting on 21 October 2021, the Practice’s response, the copy of the complaint file, the conversations we had with Mr A and his wife’s account of the meeting (as she was also present).
58. Medical notes from 21 October 2021 show the GP offered to go through current medical concerns to formulate a plan. Issues concerning the relationship between the patient and the Practice were discussed, and the GP noted the patient had a trust issue. Mr A’s current health conditions were also discussed, until Mr A left because he felt he had been ‘ambushed’.
59. We recognise Mr A told us the GP’s behaviour was confrontational and unprofessional, and we have considered everything he and his wife told us about what happened. However, as the GP notes provide a different account of the meeting, we cannot determine precisely how issues were discussed or expressed during the meeting or the tone of voice used.
60. We appreciate the statement provided by Mr A’s wife, but we need to reach impartial decisions on the complaints we look at. This means we consider statements by witnesses who we are satisfied are a third party and related to neither the complainant nor staff of the organisation being complained about. Thus, to reach an independent view, we have considered but will not rely on Mr A’s wife’s account in this instance.
61. We went on to consider whether there is any other impartial evidence available, such as an audio recording or CCTV, but have not been made aware of any audio recordings and would not expect a consultation in a practice (on any matter) to be recorded on CCTV.
62. Here, we have evidence that, following the meeting, the Practice deregistered Mr A based on a breakdown of trust. Here, we went on to consider whether using a balance of probability (where we weight one piece of evidence more than others) would help us to establish the tone of the meeting. Although we recognise a breakdown in trust occurred, we still do not have enough convincing evidence to reach an independent view of the tone of the meeting and how the parties present behaved.
63. From time to time, a lack of evidence can prevent us from reaching a view. In situations like this, we then consider the scale of the claimed injustice (and any wider public interest) to help us decide whether we should do a detailed investigation.
64. After this consideration, we have decided to take no further action. If we did move to a detailed investigation, we would still be unable to say for sure how the meeting was conducted. In line with our Policy (section 3.13), we also recognise there will be times when a detailed investigation will not produce any additional evidence or not reach a satisfactory conclusion.
65. This reasoning, along with the lower level of injustice of worry and upset Mr A claimed from the way he was spoken to in the meeting, does not persuade us to progress to a detailed investigation. It means we take no further action on this complaint part as we are unable to reach a view.
The Practice’s deregistration of Mr A
66. GMC’s guidance on Good medical practice and on ending your professional relationship with a patient is relevant here to tell us what should happen.
67. Good medical practice states a clinician can end a professional relationship with a patient only when the breakdown of trust between the doctor and the patient means good medical care cannot be given to the patient.
68. The guidance goes on to state that, before a professional relationship with a patient is ended, a clinician should: 1) warn the patient, 2) do what they can to restore the professional relationship, 3) explore alternatives to ending the professional relationship and 4) discuss the situation with an experienced colleague or the employer or contracting body.
69. Mr A claims when he got home after the meeting, he found an email from the Practice containing a letter telling him it had deregistered him. The letter explained there was an irrecoverable break of trust and communication between him and the Practice. Mr A said he received ‘no verbal or written notification of any warning’ prior to the deregistration.
70. Mr A says there was an ‘insinuation that he was [an] unruly patient, and he was not safe to deal with’. The GP did not mention Mr A’s ‘unruly behaviour’ before this meeting and the deregistration letter. Mr A says the Practice directed him to the NHS.UK website to help him find an alternative GP in 28 days. Mr A says this damaged his mental health and left him emotionally distressed.
71. In its letter dated 21 October 2021, the Practice informed Mr A that, following his consultation with the GP and his previous emails explaining his lack of trust in the clinicians, the relationship of mutual trust and co-operation was seriously damaged and the Practice no longer felt able to provide Mr A with good medical care.
72. In its final response on 4 November 2021, the Practice said the complete breakdown of professional relationship suggested Mr A would be better served by another practice.
73. Mr A registered with a different practice on 14 December 2021, approximately two months after his deregistration from the Practice.
74. We can see from the medical records of 20 October 2021 Mr A has ‘lost trust in being heard at the Practice’. Additionally, from its response dated 14 October 2021, we can see the Practice explored the alternative of offering him a face-to-face appointment with a different clinician.
75. In reaching this decision, we considered the copy of the complaint file, the medical records, the Practice’s response, the letter explaining Mr A’s deregistration from the patient list (dated 21 October 2021), the conversations we had with Mr A and the relevant GMC guidelines.
76. We also recognise Mr A did not raise a formal complaint regarding his deregistration from the Practice. However, he did write to the Practice to try to understand why he had been deregistered. Mr A said he was ignored and no clarification was provided beyond ‘breakdown in doctor/patient relationship’.
77. We considered whether this complaint might be premature. By this we mean the Practice has not had a chance to look at this complaint point, which would mean we do not have the Practice’s version of events to balance Mr A’s. However, following our Policy (section 2.230), we recognise there are exceptional times when we may consider a premature complaint and then go on to consider whether there is any merit in looking at the complaint part without an organisation having written a complaint response.
78. As we are for and funded by the public, we need to make sure we maintain a balance in our work between (a) supporting those who complain to us to get a remedy for the injustice they have experienced and (b) ensuring we use our resources to focus on cases where we can have the most impact and support those who need our help with significant claimed injustices the most. In April 2021, we changed our process to reflect this and now do not consider lower-level injustices.
79. This means, in some circumstances, we will decide not to consider a case where someone tells us the injustice they have experienced has not had a significant or lasting impact on them.
80. From what Mr A has said, we know he has experienced emotional injustice of ‘undue stress and anxiety’ and ‘suffered sleeplessness and irritability and struggled to eat due to nervousness’.
81. Mr A explained ‘it took a lot for him to be able to leave the house and even then, he could only do so with his wife for support’. Mr A explained his ‘willingness to attend any new appointments with his new GP or any other medical/hospital appointment was affected’. Although we recognise wider health matters may be involved in this case, we cannot say for sure what effect the deregistration may have had on them. Also, applying our principles of proportionality and based on the scale of the claimed injustice, we are not persuaded to explore this complaint further, because we feel doing so would not be proportionate and would not help us identify conclusively what impact the deregistration had.
82. We do not doubt Mr A’s experience as we can see he was deregistered and we recognise that would have caused unnecessary annoyance, shock, worry and frustration. However, we can see Mr A was registered with another practice within two months and consider by that time he had found a new GP for care.
83. Even if the emotional anxiety and frustration Mr A reported lasted several months, we do not consider the level of claimed injustice to be more than a level one or two on our severity of injustice scale. This is because the injustice and impact experienced are, in our view, relatively short-lived and not life-changing, and we would normally expect someone to be able to recover from such lower-level injustices.
84. We have spoken to Mr A to understand his experience and the impact the claimed injustice had on him. After careful consideration of what Mr A told us, we believe Mr A experienced a level two injustice on our severity scale (having registered with a new practice in a couple of months). Therefore, in line with our decision-making since April 2021, will take no further action on Mr A’s complaint about deregistration from the Practice.
85. For the reasons we have given, we will take no further action on Mr A’s complaint. We would like to emphasise our decision in no way calls into question Mr A’s experience and how it has affected him. This marks the end of our primary investigation and process.