27. The NHS guidance on complaining explains (section 7) that a complaint must be made to the NHS not later than 12 months after the date on which a person knew of a reason to complain and that if a complaint is made after this and the NHS do not see a good reason to consider delays, the service may not look at the complaint.
28. Similarly, the Health Service Commissioners Act (an act of UK law which underpins the work of the Ombudsman) is explicit that the aggrieved must refer a complaint to the Ombudsman within one year from the date they knew they had a reason to complain (section 9.4 of the Act).
29. These points are referenced in our own policy which informs our approach to decision making; that a complainant must raise their complaint with the NHS within a year of becoming aware of the reason to complain. Also, if a complaint is made to us out of time, but the complainant has complied with the timescales within the NHS complaints process, this is an important factor when looking at whether or not to exercise our discretion.
30. Informed by this, we begin by considering each stage of the complaint and identify where there are delays from all parties involved. We engage with the complainant to better understand the reasons for any delay(s), this allows us to understand the time taken for the complainant to take action to make their complaint, and the circumstances that caused their delay so we can assess reasonableness. We also look at the time taken to respond to a complaint by the organisation.
31. There is no exhaustive list of reasons that could delay a complaint or a timescale to meet, we take this consideration on an individual case by case basis. Reasons could include lifetime limiting illnesses or compromised mental health, lack of mental capacity, significant care responsibilities or bereavement grief and loss and how these presented over a period or how those barriers changed over time.
32. Where we identify delays, if we consider the reasons are exceptional that they prevented a person progressing the complaint and are thus justified, we may then go onto consider waiving the time limit as the Ombudsman has this discretion to do so.
33. Having explained the process, we next go onto establishing a summary of the delays. We have identified the following periods of time and delays in the complaint process.
Establishing the date of knowledge
34. Mrs A says that she was told considerably earlier in 2012 that she would need to have her cervix sewn when she reached 12 weeks of pregnancy then on 5 January Mrs A says she had a consultation, and she informed the Trust in this appointment about the cervical stitches.
35. At this appointment Mrs A asked why she had not had them as she was around one week over the 12 week point for the suture. She says she was told she would get a call shortly, but she never got a call. She was also told a referral for the stitches would happen, but it never did. However, we also recognise that at this point Mrs A was acting in good faith with the expectation a call and arrangement for the procedure would occur. By 4 February 2022 Ms A knew the stitched hadn’t been arranged or occurred. Therefore, we take this as her date of knowledge that something was wrong.
Timeline of complaint process
36. Next after establishing a date of knowledge we have gone onto look at how long it took to make a complaint. We can see that from this point, it took Mrs A around 20 months to raise her complaint on 31 October 2023.
37. Informed by the NHS guidance on complaining, under normal circumstances, we would have expected to see a complaint raised with the Trust on or before 4 February 2023.
38. Thus, at the point of a complaint being raised this was eight months out of time.
39. Having identified the complaint out of time we engaged with Mrs A to look at the reasons for delay. We identified the following periods of time (which we will then go onto explore):
• time from date of knowledge 4 February to October 2022 • October to November 2022 • time From November 2022 to April 2023 • time from April 2023 to October 2023
Complainant delays
40. We recognise Mrs A went through a very traumatic experience in February 2022, with the sad loss of her child and recognise that Mrs A was experiencing significant grief and shock and this impacted on her mental health and wellbeing. We understand grief presents itself differently for each individual and during this period up to April 2022, Mrs A was still having to engage with services regarding her own health and wellbeing.
41. We consider it justifiable that during this period Mrs A would have to adjust both mentally and physically and do not consider these reasons for delay (in this time period) unreasonable.
October to November 2022
42. We understand that even eight months later Mrs A was struggling and had sought supportive counselling sessions which occurred between October and November 2022. We do not consider it would be reasonable to question why Mrs A could not raise a complaint in this period where, from discussions with her, it is clear that Mrs A was focussed on prioritising her own mental health and wellbeing.
43. We consider the reasons for delay in this period are justified.
Time From November 2022 to April 2023
44. We can see that following the counselling there was a period of inactivity in pursuing a complaint of around five months. In this time frame we also note the 12-month deadline to complaint occurred in February 2023 meaning that beyond February Mrs A’s complaint became out of time for the Ombudsman and out of time in the NHS 12-month window to complain.
45. As we have referenced earlier in our work, we do empathise that grief and emotional loss can manifest very differently for individuals. During this period, we are not made aware of any other barriers to complaining or any other factors so significant they prevented complaint activity occurring.
46. We have considered that for the initial nine months (inclusive of time for counselling) there were delays justified, that MRs A’s physical and mental health became a priority and a significant barrier to complaining. However, in conducting our work we understand that Mrs A’s circumstances did change from November 2022 onwards that Mrs A had undergone counselling and been proactive at managing her wellness.
47. We considered it would have been reasonable beyond November to look at making inroads to complaining, to make steps to raising concerns. We have not been made aware of any other reason to prevent a complaint during this period and consider that this contributed to the delay.
Time from April 2023 to October 2023
48. Mrs A explains from April 2023, she faced uncertainty and worry when her husband began to have seizures which resulted in him having to be placed in an induced coma and multiple hospital visits.
49. During this period, we understand Mrs A was focussed on care giving and the worry regarding her husband’s health. We further spoke to Mrs A to better understand how this impacted on her ability and if this was a barrier each and every day or if circumstances varied or changed during this period. From our conversations we are made aware between April and October 2023 this involved:
• 11 April husband admitted hospital for around a week then discharged home.
• 16 July admitted again for around two weeks and discharged.
• 18 October sustained a fall, a blood clot and was in a coma for two weeks.
50. We recognise this must have been a very daunting and worrying time of great uncertainty for Mrs A in then having to adapt to care needs and facing the unknown regarding her husbands’ health.
51. Though Mrs A has detailed these dates, we must consider the reasonableness factor in asking do these prevent a complaint being raised in totality during this period of around seven months before Mrs A’s complaint was made on 31 October 2023. Having done so, we are not persuaded they do.
52. It is our view that for the three months between April and July 2023 and for the three months between July and October the opportunity to progress a complaint or make in-roads to seeking support from either family, friends or a community and voluntary third sector charitable support group could have been explored. That we are not persuaded for around six months intermittent between the key dates identified that Mrs A was completely prevented from complaining. Though we recognise barriers to complaining did occur, our view is that opportunities may also have existed as well, that the reasons do not show each and every day for seven months inclusive Mrs A was unable to complain.
Trusts delays
53. The Trust received Mrs A’s complaint in October 2023 and took around three months to provide a final response which was issued on 22 January 2024. Informed by the NHS Regulations of 2009 we do not consider this to be a delay to complaint handling. This is because though there are no guarantees in complaint handling times (dictated by severity and complexity of any complaint) when we see a complaint breaches six months with no response, the NHS regulations are explicit an organisation must write to a complainant explaining delay and what they are doing to address this.
54. As such, in general, we would take a complaint going beyond six months to show it may be becoming protracted or a long time to be issued. At three months we consider this is reasonable and had no overall contribution to the delay.
Delays in bringing a complaint to the Ombudsman 55. From Mrs A’s response from the Trust (dated 22 January 2024) we have identified Mrs A was quick to forward her complaint to the Ombudsman. This was received on 26 February 2024. We have not identified a delay in this part of the complaint process.
56. We recognise this has been a very traumatic and stressful time for Mrs A in both experiencing the sad loss of her baby, her ongoing health complications and following this the sudden worry and uncertainty placed on Mrs A in caring for her husband. In considering the time limit to Mrs A’s complaint we do not wish to detract from recognising the upset and trauma Mrs A must have faced during this period.
57. We have set out the process for considering complaints in our statement and identified all periods for delay and in doing so, identified some areas where we believe Mrs A was not ready to complain and barriers occurred which were justified. We also recognise that by the time the Ombudsman received Mrs A’s complaint in February 2024 this was eight months out of time from the twelve-month period to complain and have not identified reasons to justify the whole passage of time in complaint delays. As such, without exceptional reasons for the periods we have identified, we are unable to take further action as the complaint is out of time.