Delayed referral
15. 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 do not consider whether legal action would succeed but whether it would be a reasonable option to look into.
16. Mr E complains the Trust’s handling of his referral has resulted in him suffering a number of prolonged physical symptoms. Mr E says due to the Trust’s delay he did not receive a diagnosis of his torn rotator cuff. He experienced eight months of daily pain, loss of movement and discomfort which affected his sleep, and he was unable to work. As Mr E is seeking financial redress, it would be reasonable for him to explore a claim of clinical negligence.
17. Whilst we are able to recommend a financial remedy if we uphold a complaint, the courts are also well placed to recommend this.
18. Mr E also seeks an apology. Although an apology may not be directly achievable through the courts, it could still happen as a result of a successful legal claim.
19. Also, there is limited time for Mr E to make a legal claim and we do not want our consideration to remove that as an option for him, when it may provide the financial compensation he seeks.
20. We recognise the High Court issued a general civil restraint order preventing Mr E from pursuing legal action against the Trust without permission from the Court. We consider Mr E could still apply for permission from the court. We appreciate this is a further step in the legal process, but this does not prevent a legal claim being brought. If Mr E applies for permission to make a claim but is refused, Mr E could bring his complaint back to us for further consideration.
21. We asked Mr E if he was aware of any barriers to him pursuing legal action.
22. Mr E told us he presently receives the lower rate of Employment and Support Allowance (ESA) and Personal Independence Payment (PIP). He told us his financial circumstances are very strained and the costs of pursuing legal action are unaffordable.
23. While we appreciate there are costs involved in making a legal claim there are alternatives to employing a solicitor or representing yourself as Mr E has done in the past. Mr E could contact a ‘no win no fee’ legal firm to act on his behalf. We do not consider Mr E’s financial circumstances to be a barrier to him pursuing a legal claim.
24. Mr E says he has health issues such as unexplained weight loss, blood pressure and circulatory issues, non-functional adrenal glands, arthritis and wisdom tooth pain. He told us in addition to this, the extra stress would be intolerable and would prevent him making a legal claim.
25. Despite these health issues Mr E has so far been able to engage in our process. We have also seen evidence Mr E has been corresponding with the Trust as recently as May 2025.
26. We recognise Mr E has numerous health issues. It is likely we would require the same amount of input from Mr E as a solicitor would. We are an independent and impartial service, whereas a solicitor would be acting on his behalf and would support him through the process. For these reasons we consider the health issues Mr E has described are not a barrier to him pursuing legal action.
27. Mr E says based on his previous experience with the Trust he believes it will use ‘dirty tricks’ if he were to begin legal proceedings. We appreciate Mr E’s concern, however we do not consider this to be a barrier to taking legal action.
28. Mr E told us he believes we should investigate his complaint as to not would go against our own operating principles. We are an organisation which considers and acts within the law. As stated above, the law says we cannot investigate if there is a legal route available to the complainant. In this case, we consider there is a legal route available to Mr E and he should pursue it.
29. If Mr E finds he is unable to proceed with the legal route and wants us to consider his complaint again, he can contact us. It is important Mr E approaches us as soon as possible. This is because we can usually only look at complaints that are raised within 12 months of the person becoming aware of the issue, although we can sometimes put our time limit to one side if we feel it is reasonable to do so.
Trust response
30. Mr E has also complained the Trust were not honest when dealing with his complaint and blamed the GP practice for the delay when the fault actually lay with the Trust. He told us this caused him inconvenience and his faith in the Trust deteriorated.
31. Whilst this is an issue we could potentially consider, we could not say if the Trust were honest or not without first considering the delayed referral and how it was processed. This could potentially encroach upon the court’s functions.
32. It is possible Mr E’s concerns about the Trust’s response may be addressed as a by-product of his legal action. For this reason, we will not be considering this part of the complaint further whilst Mr E pursues legal advice.
Attempt to derail PHSO’s consideration
33. Mr E complained the Trust attempted to derail our consideration of his complaint by falsely advising us he was engaged in ongoing legal action with the Trust.
34. Mr E brought his complaint about the delayed referral and Trust’s response to PHSO in February 2024 and it was ready for assessment on 7 March. Mr E’s complaint was placed in our queue awaiting allocation to a caseworker.
35. Mr E wrote to the Trust requesting financial compensation. On 22 May 2024, the Trust advised Mr E it did not offer compensation through its complaints procedure, and he should raise a claim through the Trust’s legal team. Mr E responded to the Trust saying he wanted to avoid incurring additional costs and hoped the matter could be settled without the need for legal action.
36. On 25 May Mr E’s complaint was allocated to a caseworker at PHSO.
37. The Trust wrote to Mr E on 31 May to reiterate the complaints process offers no financial redress and Mr E should make a claim through the legal team and he would be contacted by its insurer, NHS Resolutions. On 11 June, Mr E issued a letter of claim to the Trust’s legal team.
38. On 18 June, the Trust advised Mr E his claim had been forwarded to its insurer, NHS Resolutions.
39. On 19 July the PHSO caseworker contacted the Trust to enquire about any ongoing legal action. The Trust advised it had spoken with the Head of Legal Services who had confirmed Mr E had made a claim against the Trust and it would continue for some time. Based on this information, the PHSO caseworker decided to close Mr E’s complaint as he was actively pursuing a legal route. Due to PHSO’s internal quality checks, the caseworker was not able to send the decision to Mr E until 30 July.
40. On 26 July, the Trust’s legal team had written to Mr E to advise it was aware of a general civil restraint order in place preventing him from pursuing legal action against the Trust without permission of the Court. The Trust said in light of this it was not prepared to incur the costs of investigating Mr E’s intimated claim and would take no further action.
41. It appears when the Trust advised our caseworker there was ongoing legal action, this was the case on that day. We can see the Trust’s legal team confirmed to Mr E, it was taking no further action on his legal claim one week later on 26 July. We saw nothing to suggest the Trust were trying to derail our investigation and will take no further action on this part of Mr E’s complaint.
42. We thank Mr E for bringing his complaint to us. While we recognise our decision may be disappointing for Mr E, it is important we consider and act within the law and we regret any further upset this decision may cause We hope this statement clearly explains the reasons why we will not be considering his concerns further at this time.