12. The law says we cannot investigate a complaint where a person has (or had) the option to take legal action, unless we consider this is (or was) unreasonable in the circumstances. We have discussed this with Mrs U to understand her circumstances and the outcomes she wants. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.
13. Mrs U says the Trust over administered medication to her husband and did not provide him with physiotherapy during his hospital stay to keep him moving. She says the delays with discharge left them without rehabilitative care at home, which has made her Mr U’s condition deteriorate further.
14. Mrs U says their life has changed, where Mr U use to look after her, she now has to look after him 24 hours a day. They have carers that come in twice a day to help which they have to pay for along with the physiotherapy the costs are ongoing for this, and it is impacting them financially. We are sorry to hear about the challenging time they have had since Mr U’s discharge and how this is impacting on them on a daily basis.
15. As an outcome Mrs U would like financial remedy. She is claiming physical harm and financial loss due to the Trust’s actions. There is a potential cause of action in clinical negligence.
16. In our telephone conversation on 8 July 2024, we discussed amount of compensation Mrs U was seeking. Mrs U was unable to give a figure, but confirmed it would not be a small amount. We shared our severity of injustice scale (SOI) with her. This scale allows the Ombudsman to make consistent and fair decisions across the work that we do. The scale can be found on our website.
17. We discussed this with Mrs U who said she felt their impact sits at level six and would expect £12,500 minimum as that would then pay for 12 months’ worth of physiotherapy for her husband. She explained they are running out of finances to be able to continue to fund this. We are sorry to hear of the continued financial pressures the care Mr U needs is putting on them.
18. She told us Mr U is now in bed for 20 hours a day, in a wheelchair and is permanently disabled. Mrs U told us his life has changed, and they are striving to get him walking again but are unsure if this will happen. She said she would not be happy if we achieved a smaller amount, and financial compensation is the only outcome she is seeking.
19. We do not underestimate how difficult their experience has been, we appreciate the struggles they face and how their life together has changed. We recognise how degenerative illnesses can be particularly hard to deal with.
20. We explained in our telephone call, a possible legal route is something we must consider by law. The law is clear that someone should pursue a legal remedy if one is available before we consider the case further.
21. When we consider if a legal route is available, we do not consider whether a case would be likely to succeed, but whether a legal cause of action exists to remedy the complaint. There is a legal route available to Mrs U and we have not seen anything to suggest it would be unreasonable for her to pursue it again to achieve the outcome she is seeking.
22. We consider it is in Mrs U’s benefit to fully explore her legal options while she is still within the three year limitation to make a claim. If we take the case on now, she could be missing out on an opportunity for full consideration by the courts of how the claimed failings have affected both her and Mr U. Any financial recommendation we may make would not consider ongoing care costs as the courts could as we do not make financial awards in the same way as the courts do.
23. Mrs U did not inform us of any barriers preventing her for continuing pursuing a legal route. If successful, there is a possibility she is more likely to receive a financial payment she will be happy with.
24. Mrs U told us she has approached solicitors previously. We are sorry Mrs U has not been successful getting anyone to take on their claim so far. We understand this must be frustrating. We consider it is reasonable for Mr and Mrs U to continue to pursue this further given the large amount of compensation they are seeking as the costs of care are most likely to be ongoing for some time.
25. We think it is important they fully explore their options now while they are well within the three year limit to make a legal claim.
26. We have explained Mr and Mrs U can return to us if this is unsuccessful and, but they should be mindful to return to us promptly if needed, as we would need to consider our time limit.
27. In conclusion, we consider it reasonable we do not proceed further at this time. We consider there are still options for Mr and Mrs U to reasonably pursue legal action.
28. We understand and appreciate why a financial remedy is important to them as Mrs U wants Mr U to continue to receive the care he needs at home.
29. We thank Mr and Mrs U for bringing their complaint to us.