Section 10(1) of the Scottish Public Services Ombudsman Act sets out the time limit within which a member of the public should normally bring us their complaint. The limit is one year from when the person first knew of the problem about which they are complaining. So in most circumstances we would not normally investigate a complaint that reaches us outwith this time period.
The SPSO may, however, consider that in certain cases there are ‘special circumstances’ that mean that we should take a complaint even although it has breached the time limit. In deciding whether there are ‘special circumstances’ we take into account issues such as :
- whether there has been delay because of action or inaction on the part of the public body concerned.
- whether the public body has publicised, or told the complainant in connection with their complaint, that there is a right to approach the SPSO with a complaint, and the normal time limits for doing so. This is a statutory obligation for public authorities over which the SPSO have jurisdiction.
- whether it is reasonable (in the specific circumstances of the case) to have expected an individual to have fully used the body’s complaints procedure.
- whether the complainant can show that they had good reason to delay because of health or personal difficulties, for example:
- a defined disability (physical or mental) that impacts upon daily living tasks and functioning
- recovery from major surgery or other clinical procedure
- a significant period of in-patient hospitalisation
- a significant period of serious illness
- bereavement.
We would not normally consider there to be special circumstances where:-
- the delay has arisen because of action or inaction on the part of the complainant, unless they can show that there is good reason for this, as described above
- the complainant knew they had cause to complain but chose to delay making the complaint to the public body (for example where they chose to use a route other than the body’s complaints process to take the matter forward).
Anyone submitting a complaint outwith the 12 month period must send with it a clear explanation of why the complaint was delayed in reaching the SPSO. It is for the SPSO to decide whether the specifics of the case mean that there are ‘special circumstances’.
Case studies
Here are some examples of cases where we might be asked to use our discretion to extend the time limit.
Please note that we treat each case strictly on its own merits. Even if you have a complaint that seems similar, if it has reached us outwith the normal 12 month time limit we cannot say whether we will extend our discretion to take it until we have seen it and understood the circumstances that prevented you making the complaint earlier.
Case study 1
Ms C was unhappy about a consultation with her GP. She thought he had been negligent and sought legal advice. She obtained legal aid and an expert was found to give medical advice. The expert said that the GP had not been negligent. Ms C’s solicitor told her that they could not reasonably proceed with legal action. Ms C then complained to the SPSO. It was now over 16 months since the original event. We did not consider this to be ‘special circumstances’, because Ms C herself chose to follow the legal route. We told her that she had come to us too late for us to look at her complaint.
Case study 2
Mr C’s mother died in hospital. Mr C was extremely upset at the time, had since had counselling and was on anti-depressants. During counselling sessions, the counsellor identified that Mr C was still unhappy about aspects of his late mother’s care. Mr C thought about this and decided to complain formally. The SPSO received the complaint 13 months after Mr C’s mother’s death. Given that the complaint reached us only one month beyond the 12 month limit, and the clear evidence of the bereavement and Mr C’s ill health, we considered this to be ‘special circumstances’ and used our discretion to accept and consider the complaint.
Case study 3
Dr C complained to her Housing Association about anti-social behaviour in her block of flats. When the Association sent their final response to her complaint, she was still not happy, but they did not tell her that she could then ask the Ombudsman to look at her concerns. Over a year later, Dr C saw a report in the local paper about a similar matter in which the Ombudsman had been involved. She sent the SPSO the complaints correspondence and explained what had happened. When we saw that the Association had never told her about the SPSO and that there was no mention of SPSO on the complaints leaflets they used, we considered this to be ‘special circumstances’ and used our discretion to accept and consider the complaint.