8. The Health Service Commissioners Act 1993 is the law that gives us our power to investigate complaints about NHS services in England. Section 9(4) of this law says we must not look into concerns brought to us more than one year after the person first became aware of the issue(s), unless it is unreasonable to expect them to have complained to us sooner.
9. When a person approaches us with a complaint more than 12-months after they became aware of the problem, we must consider whether there were good reasons for the delay. If we can see the delay was unavoidable, we can investigate; however, if there are any periods of unexplained delay in approaching our service, we are unlikely to conclude that the delay could not have been avoided.
10. Mr A, sadly, died on 3 May 2021. From this point, Mr H had a reason to complain about the care his father received. He did not bring his complaint to us, in full, until 21 November 2023. This means his complaint came to us 18 months outside the 12-month time limit.
11. In considering whether there were good reasons for this delay we considered the time it took the Trusts to respond to Mr H’s concerns and his personal circumstances.
12. Mr H did not raise a complaint with either Trust until 1 December 2022, which was 19 months after he became aware of the issue. This is a long delay that is not explained by the Trusts’ complaint handling, and we asked Mr H whether there were any personal circumstances that prevented him from raising a complaint sooner during this time.
13. We are usually more flexible with delays that happen during the first 12 months after a person became aware of an issue. This is because the law which governs NHS complaints in England gives people 12 months to raise their complaint with the NHS service. We recognise that during this period people will be most likely to be focused on their complaint with the NHS service provider, and may have no reason to think that any delays during this initial 12-month period could cause problems later if the NHS cannot resolve their concerns.
14. Mr H explained that between May and November 2021 he had a number of extenuating personal circumstances. He says his mother died, he contracted COVID-19, and he also had difficulties repatriating his father’s body to Pakistan. We accept that during this time Mr H’s focus would understandably have been on ensuring his father could be repatriated home, dealing emotionally with the loss of both his parents, and recovering from COVID-19.
15. Mr A’s body was able to be repatriated from November 2021. However, Mr H did not raise a complaint with either Trust until 13 months later. We are mindful that Mr H had until May 2022 to raise a complaint under the NHS complaints legislation, and he has told us he was not aware of the time limits of approaching our service at that time. For this reason, we have disregarded the period between November 2021 and May 2022 because we do not want to unfairly disadvantage Mr H. This leaves a further unexplained delay of seven months between May and December 2022.
16. We spoke with Mr H over the telephone on 13 June 2024 and asked about the reasons for the delay in approaching the Trusts, and subsequently our service. He explained that he had a lot of issues such as being prosecuted for non-payment of Council tax and problems with his tax return. He did not tell us when this happened, nor did he provide any detail around how this prevented him from raising a complaint. Mr H became distressed by our questions during the call, and we asked further questions by email.
17. We followed up our telephone call with an email to Mr H on 17 June and asked him for more information about the reasons the delays. He replied on 20 June and said ‘my mental health was not so good’. We emailed Mr H on 27 June and asked him specific questions about how his mental health prevented him from complaining sooner. We provided examples of how mental health can affect people and cause delays in raising a complaint, and we asked for more clarification.
18. Mr H emailed us on 27 June to say that he was having difficult thoughts during this, time and he did not want to provide any further information. He asked us to rely on the documents he had already provided to explain the reasons for this delay.
19. As Mr H has been clear he does not want to share more details of how his mental health prevented him from raising a complaint, we must rely on the evidence he has provided when considering whether there were good reasons for this seven-month delay.
20. Mr H provided a letter from his GP, dated 16 April 2024, which outlines that he was diagnosed with PTSD and was having Cognitive Behavioural Therapy from June 2023. The letter does not say why he was diagnosed with PTSD or when this happened. The letter also notes the loss of his parents caused him to struggle with depression and that this made it difficult to complete daily activities.
21. This evidence indicates Mr H was struggling with his mental health, but we have very little information about how this affected him day-to-day, or what difficulty completing daily activities means. Without some indication of when this began, how it affected him day-to-day, or what changed in December 2022, it is difficult to robustly conclude this delay could have been avoided.
22. We are also mindful that many of the people who complain to us have experienced traumatic bereavements and have diagnoses of PTSD, depression, and other mental health conditions. Despite these, they are still able to raise a complaint and/or seek support to do so, such as by contacting their local advocacy services. Many of these people bring their complaints to us within the 12-month time limit. This means that a mental health diagnosis in and of itself does not prevent or delay someone in accessing our service. We would need more information about how this affected Mr H in order to be able to conclude this delay could not have been avoided. He has declined to provide this information.
23. We have also considered that according to the letter from Mr H’s GP, he did not receive treatment until 2023. Had he been in treatment between May and December 2022, this could understandably have led to him feeling able to raise a complaint as his treatment progressed. However, at present, we do not have any information as to what changed between May, when he did not raise a complaint, and December 2022 when he first complained to the Trust. We would need to understand what changed during this time to robustly say this delay could not have been avoided.
24. We also reviewed the evidence of the problems Mr H had with his tax return; however, the letter provided is dated 2 May 2023, and so would not explain the delay that occurred between May and December 2022. Similarly, his evidence of the delay being attributed to being taken to court for non-payment of Council Tax is dated 9 August 2023, with a court date set for 22 September 2023, which would not explain the delay in 2022.
25. Following this initial seven-month delay there was also a delay of two months in raising a complaint with the London Trust after we told Mr H his complaint was not ready for us on 11 May 2023. After this, there was an additional delay of two months between when the London Trust issued its final response, in September 2023, and Mr H approached our service in November 2023.
26. Mr H says that during this time he was in pain due to a spinal condition and has submitted a letter he used to cancel his gym membership at that time. Although not specifically reference by Mr H, we are also mindful that he was having difficulties with his Council Tax and HMRC at that time too, with a court date set in September. Given the delays during this time were minimal, and he was having treatment for his mental health alongside being prosecuted for non-payment of Council Tax, and being pursued by HMRC for tax owed, we consider the delay was not unreasonable and is explained by the extenuating circumstances in his life at that time.
27. In summary, Mr H approached our service 18 months outside the 12-month time limit. We have considered the information he gave us about why this delay happened. Whilst some of the delay is reasonably explained by complaint handling and Mr H’s personal circumstances, there is a lengthy delay of seven months that we cannot robustly conclude was unavoidable. Where there are unexplained delays in approaching our service, we are less likely to conclude the delay was unavoidable and we, therefore, cannot take further action on his complaint.
28. We recognise that Mr H has had a very difficult experience since losing his father, and our decision does not detract from the very real and understandable distress this has caused him.