8. The Health Service Commissioners Act 1993 is the law that gives us our powers to investigate complaints about NHS services in England. Section 9(4) of this Act says we should not investigate a complaint if it is brought to us more than one year after the person became aware of the issues, unless we consider it reasonable to do so.
9. If a complaint comes to us outside of the 12 month time limit, we must consider whether to put the time limit to one side. In doing so, we should consider the complainant’s reasons for the delay and the time it has taken them to complete local resolution with the Trust.
10. Miss G complains the Trust did not diagnose Mr H with a Pancoast tumour in February and May 2022.
11. When Miss G completed her complaint form to us, she documented the 21 July 2022 as the date she became aware she had a reason to complain. This is known as the date of knowledge (DOK).
12. When speaking with us, Miss G disagreed the DOK was 21 July. She says too much happened after Mr H was diagnosed with a Pancoast tumour, so it wasn’t clear.
13. Miss G says Mr H began having symptoms in September 2021. In February 2022, following physiotherapy, the clinical team referred Mr H for a CT (computed tomography) scan. The scan results confirmed that he had a nodule, a small growth, in his right lung. Mr H had a follow up CT scan in May 2022 to see if the nodule had grown. In July 2022, Mr H had an MRI (magnetic resonance imaging) scan, this confirmed he had a Pancoast tumour.
14. Miss G was involved in Mr H’s care from the outset and was aware of his CT scan results and diagnosis in July 2022. Although Miss G may not have been aware of the full extent of the issue, she reports beginning to feel concerned around this time. For this reason, we are satisfied that the date of knowledge is 21 July 2022, as documented by Miss G on the complaint form.
15. For Miss G’s complaint to have been made within the time limit, she would have needed to bring the complaint to us by 21 July 2023, within 12 months of the DOK.
16. Miss G submitted her complaint form to us on 21 January 2025, which was one year and six months outside our 12 month time limit.
17. We spoke with Miss G and her mother, Mrs H, to understand why they were unable to bring a complaint to us sooner. We also took into account the time it took for the Trust to respond. The timeline and our considerations are set out below.
Miss G’s reason for the delay 18. Miss G says when Mr H first experienced symptoms, it took several months for the Trust to confirm his diagnosis. She says that the family raised the idea of making a complaint with Mr H on a few occasions due to the agonising pain that he was in from October 2021 to August 2022.
19. The idea of complaining caused Mr H increased stress and escalated his breathing difficulties, he felt that engaging in a complaints process was too much for him to cope with. The family chose to focus on what Mr H wanted and what was best for him at that time.
20. Miss G says during Mr H’s illness, the family cared for him at home which was difficult for them. Mr H struggled greatly with his symptoms every single day and they had to focus solely on him and his needs during this time.
21. Miss G says when Mr H died on 27 October 2023, there were issues with the funeral. She also says it took the family a long time to be able to write a complaint. She says she made the complaint to the Trust within 12 months of Mr H’s death, as that was when the full story had become clear.
22. Miss G says the 12 month time limit started for her family after Mr H had died and they had time to reflect and process what had occurred between August 2022 and October 2023.
23. We recognise that Mr H did not want to make a complaint between October 2021 and August 2022. We also understand the reasons why Miss G feels that the 12 month time limit began after Mr H’s death in October 2023.
24. It is important that we consider what is fair when exercising discretion to set aside the time limit. We have considered that it took Miss G 15 months to complain to the Trust after the DOK. Whilst we empathise with Miss G and her family, we think this complaint could have been raised sooner. Had this happened, we would have been more likely to put the time limit to one side.
Complaint to the Trust 25. From the information provided, we note that Miss G complained to the Trust on 24 October 2024. Miss G says that Mr H died on 27 October 2023 and therefore her complaint was made to the Trust within 12 months of his death.
26. The National Health Service Complaints (England) Regulations 2009, Section 12 states a complaint must be made within 12 months after the date on which the matter, which is the subject of the complaint occurred, or if later, the date on which the matter which is the subject of the complaint came to the notice of the complainant.
27. We recognise the time limit for raising a complaint with the Trust is the same as the time limit for approaching our service. We aim to approach cases with a degree of flexibility due to this. That said, we note that Miss G did not raise a complaint with the Trust until after this deadline had passed.
28. The Trust responded to Miss G’s complaint on 8 January 2025. She says the Trust did not inform her that there was a 12 month time limit to raise a complaint to us. When Miss G complained to the Trust on 24 October 2024, despite its prompt response, it was already beyond our 12-month time limit due to the delay in raising the initial complaint.
29. We recognise how difficult and frustrating this situation feels for Miss G and Mrs H, especially as they were not aware of the 12 month time limit for submitting a complaint to us. We understand that this has been an emotional and challenging experience for them, and our decision in no way detracts from this.
30. Due to the significant delay in raising the initial complaint, we cannot use our discretion to set the time limit to one side. This is because, whilst this was a difficult time for the family, the initial delay was excessive and fell outside both the time limit for the Trust’s complaint handling and our service.
31. From speaking with Miss G and Mrs H, it is clear what happened to Mr H had a profound impact on their lives. We are very sorry to hear how they have been affected, and we understand how important this complaint is to them. We recognise this may be a disappointing outcome for Miss G and her family and we hope we have fully explained the reasons for our decision.