11. The Act defines our role, responsibilities and the things we must consider as the final step in the complaints process.
12. Section 9(4) of the Act says we should not investigate a complaint if the affected person brings it to us more than one year after they first became aware of their reason to complain, unless we consider there is good reason to do so.
13. Mrs E has told us she first became aware she had a reason to complain in August 2019. She says Trust staff gave her father medication around this time which made him delirious and move around more in bed, which caused his surgical wound to reopen. The reopened surgical wound needed a second operation to close it.
14. With this and the Act in mind, the law says Mrs E needed to make her complaint to us by August 2020.
15. Mrs E first raised a formal complaint with the Trust on 5 November 2019. On 18 February 2020, the Trust first responded to Mrs E’s concerns. It offered her the opportunity to come to an LCPM and told her she could approach us if she was still not satisfied.
16. At some point in June 2020, Mrs E wrote to the Trust to outline her dissatisfaction with its response to her complaint.
17. On 16 June 2020, the Trust wrote to Mrs E and told her it could not investigate or respond to her concerns immediately because of pressures caused by the COVID-19 pandemic. It said it would update her in the coming months.
18. On 9 November 2020, the Trust issued a second response to Mrs E’s concerns. It offered her the chance to come to an LCPM and again told her she could approach us if she was still dissatisfied.
19. We understand Mrs E agreed to come to an LCPM in the days after receiving the Trust’s response but, because of the COVID-19 pandemic, the Trust could not arrange the LCPM quickly.
20. The Trust has confirmed to us it should have done more to arrange this meeting and it has apologised for not doing so. It has told us it has taken steps to prevent this from happening in the future.
21. On 15 June 2021, Mrs E went to an LCPM with the Trust.
22. On 14 July 2021, the Trust wrote to Mrs E to thank her for coming to the LCPM. It enclosed a copy of the meeting notes and copies of the complaint correspondence.
23. On 26 July 2021, Mrs E told the Trust she was unhappy with the LCPM and the notes it had given her. She asked the Trust for a copy of the audio from the LCPM, which it gave her a few days later.
24. On 14 September 2021, Mrs E spoke with the Trust again. She was unhappy with how it had handled things. The Trust agreed to write to her again to address her concerns.
25. On 18 October 2021, the Trust issued its final response to Mrs E, and it directed her to us if she remained dissatisfied.
26. On 28 January 2022, Mrs E brought her complaint to our office.
27. This means Mrs E came to us 29 months after she became aware of her reason to complain, which was 17 months outside of our time limit.
28. We recognise the Trust caused some long delays because of how long it took to respond formally to Mrs E’s concerns and, in particular, how long it took to arrange the LCPM.
29. As such, we have focused on the periods of delay for which Mrs E was responsible, and the reasons why she did not follow up her complaint during those times.
30. We have identified three time gaps where Mrs E appears to have not been following up her complaint.
31. These gaps are:
• three months between becoming aware of her reason to complain in August 2019 and raising her complaint with the Trust in November 2019 (First delay) • four months between receiving the Trust’s initial response in February 2020 and responding to the Trust with her remaining concerns in June 2020 (Second delay) • three months between the Trust’s final response in October 2021 and coming to us in January 2022 (Third delay).
32. We discussed with Mrs E her reasons for these delays.
33. To be clear, we have given the reasons for delay Mrs E gave us and our consideration under the relevant headings below.
First delay
34. Mrs E says she took three months to raise her concerns with the Trust initially because she was grieving the death of her father and trying to get her family’s affairs in order. She says she had to help arrange her father’s funeral in October 2019. Mrs E says she could not have raised her concerns earlier.
Second delay
35. After receiving the Trust’s first response on 18 February 2020, Mrs E says she did not respond immediately because of the outbreak of the COVID-19 pandemic in March 2020. She says she has a caring responsibility for her mother who has dementia, and there was ‘lots going on’ as she had to figure out how to care for her mother during the pandemic. She says it took a while to get used to caring for her mother with COVID-19 restrictions in place and so she could not follow up her complaint until she had resolved those problems.
Third delay
36. Mrs E says that, after receiving the Trust’s final response on 18 October 2021, she did not come to us earlier because October is the anniversary of her father’s funeral, which was a difficult time for the family. She says her birthday is in November, which is just before the Christmas festive period. Mrs E told us this is a difficult time of year to do anything other than be with her family because she becomes ‘inconsolable’.
37. Mrs E says her mother’s dementia means she often asks where Mrs E’s father is, which makes her feel even more upset. Mrs E says everything was ‘too much’, so she felt unable to bring her complaint to us earlier.
Our view
38. We were very sorry to hear how her father’s death has affected Mrs E, and we appreciate it must have been very difficult for the family to deal with, particularly around the festive period.
39. But we do not consider all of Mrs E’s reasons for delay to be sufficient justification for disregarding our time limit.
40. We understand that, following her father’s death, Mrs E needed to focus on more pressing matters, such as arranging her father’s funeral and putting her family’s affairs in order, particularly given the fact her mother was unable to help because of her dementia. We also recognise that Mrs E was grieving the loss she felt and could not have progressed matters as quickly.
41. In the circumstances, we do not consider the time it took for Mrs E to raise her concerns initially to be unreasonable.
42. Also, we recognise that the outbreak of the COVID-19 pandemic affected Mrs E’s ability to respond to the Trust’s initial response in February 2020.
43. As the primary carer for her mother, we understand Mrs E’s focus was on working out how she could best care for her mother, given the effects the pandemic was having on everyday life. Also, we know the NHS called a state of emergency in March 2020, which significantly reduced or paused its complaints services so staff could help in other areas of the Trusts to tackle problems arising from the pandemic.
44. With this in mind, we do not consider it unreasonable Mrs E did not progress the complaint at this time.
45. The Trust issued its final response on 18 October 2021, but Mrs E did not approach us until January 2022.
46. We recognise Mrs E says she could not have approached us earlier because it was an emotional time for the family, particularly because October was the anniversary of her father’s funeral and because of the festive period.
47. But we do not consider this justifies a delay of three months in coming to us, particularly when she was already significantly outside of our time limit. We understand the anniversary of her father’s funeral may have brought difficult emotions back to the surface and the family-orientated nature of the festive season may have added to the distress she was feeling around this time.
48. But we can see Mrs E was able to correspond with the Trust’s complaints team and try to follow up her complaint during this time of year in 2019 and 2020. While we do not doubt this was an upsetting time for the family and there may have been days when Mrs E felt she could not face doing any more, we do not consider waiting three months was justified.
49. With all the above in mind, we have not seen any evidence that Mrs E’s reasons justify the full extent of her delay in bringing her complaint to us. We have identified a significant time gap during which Mrs E could have followed up her complaint but did not do so. While we recognise this may be disappointing for Mrs E, it is important we consider and act within the law. We regret any more upset this decision may cause.