14. 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 do so. We have discussed this with Mr O and his advocate to understand the reasons why he could not do so. We have also considered the time the organisations have taken to respond to Mr O.
15. Section 9(4) of the Health Service Commissioners Act 1993 (“HSCA”) states the following:
‘The Commissioner shall not entertain the complaint if it is made more than a year after the day on which the person aggrieved first had notice of the matters alleged in the complaint, unless he considers it reasonable to do so.’
16. According to our SMG: • 2.249 We must consider the time limit in every case before making a decision to investigate a complaint.
• 2.250 For health complaints, the aggrieved must refer the complaint to us within one year from the day they first became aware that they had a reason to complain (Legal requirement).
North Cumbria Integrated Care NHS Foundation Trust (the NCIC Trust)
17. We have discussed the details of the complaint with Mr O and his advocate to establish his date of knowledge. Based on the information he gave us; he became aware of the issues in March 2021 after a SAR he made to the Trust. Therefore, he had until March 2022 to bring the complaint to us. The complaint officially came to us in May 2024 and therefore it is 26 months out of time. We have discussed the details of the complaint with Mr O and his advocate to understand the reasons for this delay.
18. We can see that he raised issues regarding the misdiagnosis with the Trust around September/November 2021 as part of a complaint he already had with them (COM 0971). The Trust responded on 15 November 2021 and advised him to come to PHSO if he was unhappy.
19. We can see Mr O approached PHSO in December 2022 (9 months later). Mr O says he submitted a complaint form online. We have not been able to confirm this and the advice we received was that a confirmation email would have been sent at that time if he had. We could not find anything on our system, and we asked him to check his. He advised he was unable to find any confirmation email either.
20. There is evidence of call notes with him in December 2022, and in January 2023. The call notes from 5 January 2023 (with Mr O’s wife - G) from our Intake department states: ‘General advice given as G was concerned, she only had 30 days to provide us with Trust evidence, however she wants to go back to them. We advised the 30-day timeframe may be how long the CF is held in the system but explained there is no deadline, just to re-do the form when ready.’
21. This suggests that a complaint form may have been sent and was kept in the system for 30 days but later deleted. We have taken into account Mr O’s account of events and the call notes from the time, and we accept that a complaint form was likely sent in at the time.
22. However, there are three issues here. Firstly, by December 2022, the complaint was 9 months out of time. Secondly, the advice he was given (there is no deadline and to re-do the form when ready). And thirdly, the call notes states that G (Mr O’s wife) said they wanted to go back to the Trust.
23. Regarding the 9-month delay issue, we have explored the reasons for this delay with him. We questioned why he kept going back (to the Trust) since in every response they were advised to come to PHSO. Mr O said that he was also raising issues with the second Trust (Newcastle) at the time, and it took a lot of his time.
24. We have considered the complaint about Newcastle in detail below. However, when he was chasing Newcastle in relation to the delay for NCIC, we can see Newcastle Trust responded in March 2022. The next time Mr O approached Newcastle Trust was in March 2023. The Trust responded in April 2023 declining to reopen the complaint. He then approached them again in February 2024. Therefore, we cannot accept that he was chasing his complaint with Newcastle as justification for not approaching PHSO sooner regarding his complaint about NCIC.
25. Regarding the advice given to him on the call in January 2023. We accept that PHSO’s deadlines might not be common knowledge. Based on the limited information available (from just that call note) it is possible the advice could have been interpreted as misleading. Therefore, he was under the impression that he had unlimited time to bring the complaint. However, whilst we may have provided some reassurance about a 30-day time frame we note it was nearly fifteen months after this interaction when he returned which remains a significant amount of time.
26. Regarding the information from the call note, Mr O intended to go back to the Trust at the time. We can see that he did so as there is a new complaint (COM 1281) with Cumbria in January 2023. The Trust responded on 3 May 2023 and again advised him to go to PHSO. However, Mr O went back to the Trust on 26 May 2023.
27. We asked why not come back to PHSO, and he explained that the response offered him a LRM (Local Resolution Meeting), and he opted for that. We read the paragraph which offered a meeting, and it states that it was an MDT (multidisciplinary meeting) to discuss how to move things forwards about his care which is not an LRM. His advocate argued that to a lay person this is not clear and that Mr O’s understanding of this would be to discuss his complaint.
28. We do appreciate that and have taken account of this. Furthermore, we can see that the messaging from the Trust seemed to be confusing on this as in May 2023 the Trust acknowledge his request to discuss his dissatisfaction with the complaint response ahead of planning the October 2023 meeting. Whilst the meeting itself was later confirmed as being an MDT and not an LRM (within the meeting itself), we also note they do also try to respond to his issues within the meeting.
29. Nevertheless, Mr O then came to PHSO about seven months after the meeting (and six months after getting the LRM notes), in May 2024. This is 26 months out of time from March 2022 (when he should have come to us). Mr O said that based on the advice he received (there is no deadline) he thought he could bring the complaint any time. He also said that his advocate at the time left and around February 2024 got a new advocate who had to be informed of the case and helped him bring the complaint to us in May 2024. We appreciate Mr O needed the assistance of an advocate but even within that we can see he was free to respond to us after the meeting and there were further delays.
30. Overall, we appreciate that this was a very difficult time for Mr O. We accept that he had first approached us in December 2022 and the wrong advice was likely given to him. However, even by that point the complaint was out of time by nine months. We have carefully considered the reasons for the delay, but we have not seen sufficient basis to put the time limit aside.
The Newcastle Upon Tyne Hospitals NHS Foundation Trust
31. We have discussed the details of the complaint with Mr O and his advocate to establish his date of knowledge. Based on the information he gave us; he became aware of the issues in March 2021 after a SAR he made to NCIC Trust. Therefore, he had until March 2022 to bring the complaint to us.
32. We can see that he raised issues regarding the size of the tumour and NCIC’s misdiagnosis with the Trust in May 2021. The Newcastle Trust responded in August 2021 with him going back to them in September/November 2021. The Newcastle Trust sent its final response in November 2021 directing him to PHSO. We appreciate May to November was taken up with local resolution in the main and have taken this into account.
33. Mr O next approached the Trust in January and February 2022. Newcastle Trust sent a letter in March 2022 declining his request for an LRM and state they have nothing further to add. He next approached them in March 2023 which the Newcastle Trust declined to re-open in April 2023. He tried for a third time in February 2024 with Newcastle Trust again refused to respond in March 2024. The complaint officially came to us in May 2024 which is 26 months out of time. We have discussed the details of the complaint with Mr O and his advocate to understand the reasons for this delay.
34. Mr O says that he was asked by Newcastle Trust to submit his questions for consideration which he did in February 2022, but they declined to respond in March 2022. We asked why not come to us then as that would mean the complaint would be either just in time or just out of time. He reiterated that Newcastle Trust asked him to submit his questions, but they declined to respond when he did. We asked for any evidence of that, but none was provided.
35. We have also considered that he approached us in December 2022 (9 months after the March 2022 deadline) and that there is evidence that he may have submitted a complaint form at the time. It is unclear whether that complaint form included the Newcastle Trust as well as NCIC. The reasons for that delay were considered above and I would not repeat them to avoid confusion. However, we will note that there is a call note from January 2023 explaining that they would go back to the Trust for answers.
36. We can see he approached Newcastle Trust in March 2023, but they declined to reopen his complaint in April 2023. He then approached them again (11 months later) in February 2024 with the Trust declining to re-open the complaint again in March 2024.
37. We asked him about that delay, and he said he has emails from Newcastle Trust asking him to send in his questions, but they then declined not to respond to him. We asked him to send any such evidence, but the evidence provided was from January and February 2022. Furthermore, he is clear in himself the Trust declined to provide any further interaction between April 2023 and March 2024. Therefore, we cannot accept this as a reason to justify the delay in this case.
38. We appreciate this was a very difficult time for him. The uncertainty about the size of his tumour and his confusion about the diagnosis would have caused his distress. We would like to reassure him that we have carefully considered all the reasons he provided and that our decision does not aim to take away from his experience. However, the reasons provided do not allow us to set our time limit aside.