11. The law says a person needs to make 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 to justify the delay in a complaint being brought to us.
12. The NHS complaint procedure also sets out that a patient must bring their complaint to the NHS within twelve months from the date they knew they had a reason to complain. The NHS does not guarantee that complaints made after twelve months can be looked at, but it can look at complaints individually and decide if there is good reason for the delay.
13. We think Mrs E knew there was a problem to complain about in early February 2021 when her husband sadly died and also in September 2021 when the Trust could not say who made the comment about his blue nails.
14. Then from April 2021 to August 2022 Mrs E was speaking with the Service to get answers and following up with more questions.
15. In February 2023, the complaint came to us.
16. In total, this means the complaint came to us 12 months out of time as we would expect it to have reached us by February 2022 to be in line with the law.
Timeline of the complaint process
17. It seems Mrs E first engaged with the Service in April 2021. But, her formal complaint letter is dated 18 May 2021.
18. The Service held a meeting with Mrs E in August. This was a delay of around three months from the date the formal complaint was made. The Service provided a follow up letter after the meeting on 7 September.
19. Mrs E contacted the Service again that month because she was unhappy with its response. The Service sent a second final response letter on 10 November.
20. Mrs E was still unhappy and contacted the Service on 12 November. The Service held another meeting with Mrs E in December to discuss her concerns.
21. In January 2022, Mrs E sent the Service two more letters about her complaint which she considered unresolved. The Service sent a response on 20 January, advising Mrs E of Healthwatch England (a health and social care champion) and that her complaint was closed.
22. Four months after this letter and around 14 months after Mrs E first spoke to the Service about her concerns, Mrs E sent it a further letter again asking about the blue nails comment and who reported Mr E’s death. The Service responded within the same month.
23. In July, Mrs E’s advocate sent the Service a complaint letter. On 14 July, the Service responded by letter. It seems Mrs E did not get this letter until early August, because it went missing in the post.
24. In August, Mrs E called the Service to express her unhappiness with its answers. Mrs E told the Service she would be taking this further and hung up.
25. Six months passed and in February 2023, Mrs E’s advocate brought the complaint to us.
Periods of delay
26. We have identified these periods of delay in the complaint progressing:
Delays on Mrs E’s part
• two months taken for Mrs E to make a complaint (February to April 2021) • 16 months for Mrs E to engage with the Service (April 2021 to August 2022) • six months to bring the complaint to us (August 2022 to February 2023).
Delays on the Service’s part
• four months from getting Mrs E’s first complaint letter in May 2021 to it holding a complaints meeting in August and sending a follow up letter in September • two months to send a reply to Mrs E’s further concerns raised on 17 September • just less than one month to arrange another meeting in December after Mrs E contacted it on 12 November • the Service responded within one month to Mrs E’s contact in January, April and July 2022.
Delays on the advocate’s part
• around four months from Mrs E contacting advocacy services in March 2022 to the advocate contacting the Service in July.
27. When we see delays, we speak to the complainant to better understand the reasons and if they justify the delay. In exceptional circumstances, where we can see situations happened that are outside of the complainant’s control, we may then put the time limit to one side. There is no list of reasons that we check against for delays. Instead, we consider each complaint on an individual basis.
28. We have discussed this with Mrs E to understand the reasons why the complaint came to us late. We have also considered the time the Service took to respond to Mrs E.
29. Mrs E complains about a staff member saying Mr E’s nails were ‘going blue’, the Service being unable to identify this staff member and a nurse giving Mr E midazolam.
30. From discussions with Mrs E, it seems she became aware of her concerns about the staff member saying Mr E’s nails were ‘going blue’ and giving him midazolam in early February 2021. The complaint letter dated 7 September 2021 shows the Service had been unable to identify the staff member who made the comment.
31. For Mrs E’s complaint to be in time, she should have contacted us with her complaint within 12 months of these dates (February 2022 and September 2022).
32. We can see the Service responded to Mrs E’s concerns quickly and in a variety of ways - phone calls, meetings and letters. We do not consider the longest overall delay to be because of the time the Service took to deal with Mrs E’s complaint.
33. Mrs E continually contacted the Service between May 2021 and June 2022 repeating her concerns each time, despite the Service having answered these many times.
34. We can see the Service attempted to identify the staff member who made the comments to Mrs E, answered her concerns around the injection given and communication. Throughout each of the Service’s responses, its answers to Mrs E’s concerns are the same. It seems Mrs E was unwilling to accept these answers.
35. In the Service’s letter dated 18 January 2022, it confirmed it had made every effort to explore the complaint and it considered the complaint now closed as it did not have anything further to offer. It directed Mrs E to advocacy services. By the time of this letter, the Service had held two meetings with Mrs E to discuss her concerns, got statements from staff, wrote three letters of response and had three phone conversations with Mrs E to discuss her concerns.
36. We tried to discuss with Mrs E the reasons why she kept returning to the Service with the same concerns. Mrs E repeated her complaint and said she could not understand how her husband died like he did. We recognise the loss of her husband has been very distressing and naturally as part of a grief cycle she wanted answers.
37. Mrs E was fairly quick in bringing her complaint to the Service within twelve months. If a complaint comes to us late, but the complainant complained to the organisation within the complaints process timescales, this is an important factor that we consider.
38. Mrs E says her primary reason for delay was grief and delays in finding and engaging with an advocate.
39. For the period April 2021 onwards Mrs E was actively engaged in complaining to the Service without an advocate and from January 2022, the Service provided Mrs E with advocacy details which she contacted from March 2022. By this point the complaint was around eleven months old.
40. The advocate started to support her from around July 2022. By this point the Service had already provided complaint responses and the complaint was now around five months out of time for our consideration.
Our decision
41. We recognise there is no set time for how long or severe an individual’s grief is and we are sympathetic to how this affects a person. We understand bereavement affects everyone in different ways and this can impact a person’s mental and physical health. There is no right or wrong way to feel.
42. We also recognise that where there is advocacy support available, how long this takes to get is often outside the complainant’s control. Mrs E was not responsible for how long it took to get an advocate. That said, when the Service gave advice on contacting an advocate, the complaint was already one month out of time and the complaints process was more or less complete.
43. Though we recognise Mrs E says grief is the reason for delay, after careful consideration we are not persuaded this justifies the 12-month delay in coming to us. Our understanding is that Mrs E, though keen to get answers, spent a lot of time going back to the Service (April 2021 to August 2022). But, if the advocate or Mrs E had looked into the complaints procedure, they would have seen the time limits for bringing a complaint to us.
44. Similarly, though we recognise Mrs E was grieving she was able to actively engage with the Service throughout. By January 2022 the Service had more or less completed answering Mrs E’s concerns. At this time, had Mrs E been aware of the next stages of complaining or researched what to do next, we think it is likely she would have realised there is a time limit for bringing cases to us.
45. It is important to note that the Service did not direct Mrs E to us in its complaint responses. We appreciate the complaints process can be complex and confusing to those who have not been involved in it before. We expect people to explore avenues available to complain, whether that be by contacting the organisation, a GP or using resources like websites and leaflets.
46. Lastly, we note that it took Mrs E around five months to bring her complaint to us after completing the Service’s complaints process. It seems Mrs E got the Service’s final letter late (in early August 2022) because the original copy was lost in the post. We spoke to Mrs E about why she did not come to us sooner. Mrs E told us it was a long time ago, but she thinks she was waiting on a call from us.
47. We checked our system and the first contact we have is from Mrs E’s advocate and is an email dated 22 February 2023. There is no sign that Mrs E contacted us before this time.
48. Taking everything into account, we do not have good reason to put our time limit to one side.
49. As such, we think Mrs E could have approached us with her complaint much sooner than February 2023.
50. On this basis, we consider Mrs E’s complaint is out of time and we have not seen good reason to set this time limit aside.
51. We are thankful for Mrs E bringing her complaint to us.