17. 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 S to understand the reasons why he could not do so. We have also considered the time the organisation has taken to respond to Mr S.
18. We first need to consider when Mr S first had reason to complain. We call this a complainant’s date of knowledge. We consider this was between April and August 2022, when Mr S was under the care of Consultant A at the Trust.
19. During this period Consultant A called Mr S to tell him there was nothing that could be done about his nerve damage, confirming it is a permanent injury.
20. Mr S confirmed this was when he first had reason to complain. In other words, this was when he first linked the nerve damage to the surgery. Before this date Mr S felt he would improve and did not realise his injury was permanent.
21. We do not know when Consultant A called Mr S as above. We do know it must have occurred between April and August 2022. This is because the Trust said Mr S was under the care of Consultant A during this period. Mr S has confirmed this.
22. Therefore, Mr S’s date of knowledge for this complaint is between April and August 2022. To be as fair as possible to Mr S giving him the benefit of the doubt, we will choose the latest possible date of 31 August 2022 as his date of knowledge for this complaint. We consider this is the latest possible date Mr S’s date of knowledge could be.
23. Mr S first brought this complaint to us in writing around 12 April 2024. We acknowledge there was some back and forth thereafter with the Trust and we did not formally open his case until 27 June 2024. Mr S was doing this on our advice, and he did this in a timely manner. There was no delay with him going back to the Trust and then later coming back to us thereafter. Therefore, we consider Mr S first brought this complaint to us in writing on or around 12 April 2024 and this is when the clock should stop for our out of time considerations.
24. This means Mr S’s complaint is just under seven and a half months outside of our 12-month time limit – around 19 months and 12 days in total.
25. We can see Mr S possibly caused two periods of delay within this time. Firstly, the almost year period between his date of knowledge and making the initial complaint to the Trust (31 August 2022 to 23 August 2023) – around 11 months and 23 days in total.
26. Secondly, the three-month delay bringing this complaint to us following the Trust’s final response (4 January 2024 to 12 April 2024) – around three months and eight days in total.
27. To consider if these periods are justifiable, we asked Mr S about them, to better understand the reasons for them. We considered if there were any reasons why Mr S could not have complained to the Trust or us sooner.
28. Mr S told us, about the first period, he is not the sort of person to complain. He said he wanted to give the Trust the best chance to put things right before he did complain. He said he was having lots of treatment and tests, after his date of knowledge, and wanted to give the Trust ‘…every chance to put the damage right.’
29. Mr S said this was the only reason he did not complain sooner, and he confirmed there was no other reason why he could not complain, and there was nothing stopping him from complaining sooner. He said once he realised he was ‘not getting anywhere’ with the treatment he decided to complain.
30. We appreciate Mr S’s reasons here and it is commendable he was so patient with the Trust and gave it the opportunity to put things right without the need to complain. This alone is not a reason we can set aside our time limit. This was Mr S’s choice, and it did not stop him complaining.
31. Mr S also knew from his date of knowledge that his injury was permanent and therefore any treatment was unlikely to return him to the position he was in before the surgery.
32. We consider Mr S could have complained to the Trust about his nerve damage any time after 31 August 2022 (his date of knowledge), and we cannot justify this period of delay.
33. Regarding the second period, Mr S told us he could not recall why this was the case. He said he maybe went back to the Trust following its complaint response, but he could not recall this.
34. The Trust, at the end of its response letter to this complaint, told Mr S he can take his complaint to us. It informed him it is important to make his complaint to us as soon as possible as there are time limits for us to investigate complaints. Therefore, Mr S was aware, or should have been aware of our time limit.
35. We have seen no evidence to suggest Mr S could not bring this complain to us sooner. Therefore, we cannot justify this period of delay.
36. We have considered the time it took the Trust to respond to Mr S’s complaint, around four and a half months – 23 August 2023 to 4 January 2024, around four months and 12 days in total. This period is not because of Mr S. This is the time it took the Trust to respond and therefore any delay here is justified.
37. Considering all the above, Mr S’s complaint is seven months outside of our time limit, and there was a combined 15-month period of delay that is not justifiable where Mr S could have either complained to the Trust or brought his complaint to us. We have seen no evidence to set aside our time limit. We cannot consider Mr S’s complaint any further, as it was brought to us outside of our 12-month time limit and there are no good reasons to set this aside.
38. We appreciate this decision may be disappointing or frustrating. With this decision we are not trying to diminish what happened to Mr S. We wish Mr S well going forward.