23. We are unable to investigate complaints that do not meet our time-bar policy. We must consider the time limit for every case. For health service complaints, the aggrieved must refer the matter to our office in writing within 12 months from the day they first became aware they had a reason to complain (as set out in section 9 of the Health Service Commissioners Act 1993).
24. It is our view that Mr A’s complaint about the events that occurred on 29 June 2023 are out of time. This is because his date of awareness was also on 29 June 2023. Therefore, our office should have received his complaint by 29 June 2024, but we did not receive it until 21 January 2025 (almost six months later and 18 months after the event complained about).
25. Our office does have the power to exercise discretion, but we would only do this in scenarios where the complainant could not bring their complaint to our office sooner. For example, the organisation took a long time responding to their complaint.
26. We spoke to Mr A on 31 October. He gave the following reasons for not complaining sooner: • He blamed the Trust for the delays, saying it delayed the local resolution period to ‘run the clock’ on his complaint.
• He blamed his advocate, as they did not advise him to come to our office after the Trust’s complaint response on 31 October 2023 • He said his advocate did not help him bring his complaint to our office • He said he came to our office while the Trust delayed his case • He said he has learning difficulties, which impacted his ability to come to our office sooner and why he put all his faith into his advocate
27. In this case, the Trust did not take a long time responding to Mr A’s complaint. He complained to the Trust on 9 August, and it responded to him on 31 October (just under three months). The Trust responded to all the points raised and clearly listed each of Mr A’s complaints as subheadings with its responses beneath.
28. We appreciate why Mr A was unsatisfied with the Trust’s response, as the Trust could not tell him why the asthma team did not see him. However, our office could have investigated this further. Instead, Mr A decided to continue trying to escalate his complaint with the Trust despite its clear signposting to our office on 31 October 2023 and 13 February 2024. He should have followed the Trust’s instruction, and it was his own agency that delayed the case coming to our office.
29. He says it was his advocate who advised him to return to the Trust. Whilst we do not dispute this, we cannot ignore the fact that this was Mr A’s complaint, not his advocate’s. We have seen nothing to suggest Mr A lacked the capacity to make his own decisions and he was under no obligation to follow his advocate’s advice. The evidence shows the Trust had been clear on what steps he needed to take to escalate his complaint (namely, to bring his concerns to our attention). Ultimately, Mr A’s decision to follow his advocate’s advice rather than that given to him by the Trust, although somewhat understandable, is what led to his complaint falling foul of our legislation.
30. We have noted Mr A’s comment that he contacted our office during the time the Trust was dealing with his complaint. Unfortunately, we can find no record of him contacting us about these specific concerns. However, our records show that, in November 2023, he contacted us about a different complaint (involving a different Trust). At the time, we gave Mr A general advice about our time-limits. This is further evidence that he was made aware of both our legislation and our expectations.
31. In any event, a telephone conversation with our office would not have met the requirements of our legislation. As we have explained earlier, under the relevant legislation, he was required to make the complaint in writing.
32. We recognise that Mr A has learning difficulties which may impact on his ability to make a complaint in writing (and may explain his reliance on an advocate). However, we again need to refer here to the separate complaint mentioned earlier.
33. Our records show that, when Mr A approached us with that complaint, he explained the difficulty he may have in making his complaint in writing. We therefore agreed (in December 2023) that, with his permission, we would take details of his complaint by telephone and transcribe these into a written document which he could then authorise. Our records show this task was undertaken successfully and his other complaint was progressed as normal. This serves as evidence that Mr A was aware of our processes and how we could help him if he was having trouble in bringing his concerns to us.
34. Looking at matters in the round, we are satisfied Mr A was aware of the need to bring a complaint to us within the required timeframe and was able to do so effectively. Because of this, we can see no good reason to set our time-limit aside in this instance.
35. We are sorry to hear about the health concerns Mr A has had, and we can appreciate the events around 29 June 2023 were frightening for him, especially in light of his asthma and risk.
36. We realise this is unlikely to be the outcome Mr A was looking for when he approached us. We hope we have explained the thorough consideration we have given to our decision and clearly outlined the reasons for it. We would like to thank Mr A for bringing his concerns to our attention.