10. The ‘Health Service Commissioners Act 1993’ (the Act) is a law that sets out our role, responsibilities and the things we must consider as the final step in the complaints process.
11. Section 9 (4) of the Act says we should not investigate a complaint if it is brought to us more than one year after the affected person first became aware of their reason to complain, unless we consider there is a good reason to do so.
12. After speaking with Mr N and considering the evidence available to us, we understand his mother was admitted to hospital on 5 February 2021 suffering with frailty, severe dehydration and acute kidney injury. Sadly, his mother died on 10 March 2021, while still in hospital. During the period between Mrs D’s admission and her death, Mr N witnessed the care she received. Mr N was unhappy about it and subsequently complained to the Trust.
13. This means it was during Mrs D’s stay in hospital he became aware of his reason to complain. With this and the Act in mind, the law says Mr N needed to make his complaint to us within a year. To be in time, Mr N needed to bring his complaint to us by 10 March 2022. Mr N sent his completed complaint form to us on 25 March 2024. Therefore, his complaint is two years and two weeks out of time.
14. Mr N first complained to the Trust about Mrs D’s care on 27 September 2021. The Trust initially would not respond to Mr N’s complaint saying he was not his mother’s next of kin and citing GDPR law. Mr N says he contacted the Information Commissioner’s Office for help as he knew this was not correct.
15. The Trust recognised it had made a mistake and agreed to respond to Mr N’s complaint. The Trust provided a final response on 13 January 2023, one year and three months after Mr N first made his complaint. We will put this gap in the timeline to one side as this delay was outside of Mr N’s control.
16. Once Mr N received the final response from the Trust on 13 January 2023 he had the documentation he needed to make his complaint to us. Mr N did not send a completed complaint form to us until 25 March 2024, one year and two months after receiving the final response. We spoke to Mr N to understand the reasons for his delay.
17. Mr N told us this was not the first time he had contacted the Ombudsman saying he had made us aware of his complaint in 2021. He says we advised him we could not consider his complaint until the Trust had addressed all of his concerns.
18. We checked our records and can see Mr N contacted us in December 2021, April and July 2022. On each occasion we advised Mr N we could not consider his complaint without a final response from the Trust. In April 2022 we sent Mr N a complaint form in the post in anticipation of the Trust providing a final response.
19. We appreciate Mr N contacted us prior to his complaint being investigated by the Trust. We often receive enquiries from complainants early on in the complaints process. We do not consider a complaint is ready for our consideration until the complainant has provided a final response from the Trust and a completed complaint form. We correctly advised Mr N of this each time he contacted us.
20. Mr N says he was unaware we had a 12 month time limit. He says we told him it would be ok as it was the Trust who had taken a long time to respond to his complaint.
21. We sent Mr N a complaint form in the post in April 2022. At the top of the complaint form it states, ‘we may not be able to help you if your complaint is over 12 months old’. We therefore consider he should have been aware of our time limit. We have checked our records and can see no evidence we advised Mr N the time limit would be ok as the Trust had caused the delay. It is correct any delays caused by the Trust will be put to one side as Mr N had no control over these delays.
22. Mr N told us he also had issues with his phone and emails, and he had decided to stop using the internet. Mr N told us whenever he tried to contact the Trust to discuss his further concerns, he was told the person he needed to speak to was on holiday or had moved departments. He says the Trust were not helpful and stated they had not received his emails. Mr N said his emails had been wiped and has been unable to provide any evidence to show he was emailing the Trust during this time.
23. We contacted the Trust to ask if it could provide details of any communication with Mr N during this period. The Trust told us after it sent the final response in January 2023, Mr N called the complaints department in July 2023 to ask if it had received his email of 3 July 2023. The Trust had not received this email and so agreed to send a test email. Mr N confirmed he had received the test email while on the phone but did not reply to the test email.
24. The Trust said this exercise was repeated on 25 July 2023 and this time Mr N sent a blank reply. While on the phone, Mr N advised the Trust he would send a letter in the post with his further concerns. The Trust told us they did not receive a letter from Mr N and did not hear from him again until May 2024 when he contacted the Trust asking for confirmation his complaint was closed.
25. Mr N also contacted us on 19 July 2023 to advise he had received a final response from the Trust. We sent another complaint form in the post at his request. We advised Mr N to return the form with the final response from the Trust. Mr N did not return the form to us until eight months later on 25 March 2024.
26. We understand Mr N felt the Trust had not considered all of his complaint and intended to write to them with his further concerns. We have seen no evidence Mr N did write a further letter to the Trust after telling them he was going to do so in July 2023. The next step Mr N took was to complete our complaint form and send it to us in March 2024 with the final response from January 2023.
27. Mr N also told us he was not in good health, suffering with depression and lack of sleep. He said there were a great number of files relating to his complaint and he was finding it hard to keep track of everything. He says he also found it hard to look back at the events surrounding his mother’s death. He said he considered using an advocate and approached ‘Liberty Advocates’. He says he did not end up using an advocate as this company had limited opening hours and he found it hard to get in touch with them.
28. We appreciate it can be difficult to revisit distressing events in order to pursue a complaint and understand this was made harder due to Mr N’s depression. This is one of the reasons advocacy services exist. Mr N showed he was aware of such services and had the capability to make enquiries despite the health issues he describes. There are many advocacy services available. We consider there is no reason he could not have found an advocacy service more suited to him to help him pursue his complaint in a timely manner.
29. With all the above in mind, we have not seen any evidence Mr N’s reasons for his delays in pursuing his complaint once he received the final response from the Trust in January 2023 are enough justification for us to set aside our time limit. There was a significant gap of one year and two months after receiving the final response in which Mr N could have brought his complaint to us but did not do so.
30. While we recognise this may be disappointing for Mr N, it is important we consider and act within the law and we regret any further upset this decision may cause.