Our findings
Preliminary issues
43. When considering a complaint, we must first consider whether conditions included in our legislation are satisfied, in particular those relating to the availability of an alternative legal remedy for the complainant and to time limits.
44. Section 5(2) of the Parliamentary Commissioner Act 1967 says the Ombudsman ‘shall not conduct an investigation under this Act in respect of...any action in respect of which the person aggrieved has or had a right of appeal, reference or review to or before a tribunal’ unless he is ‘satisfied that in the particular circumstances it is not reasonable to expect him to resort or have resorted to it.’ Section 6(3) of the Act says people should make their complaint to an MP within a year of becoming aware of the problem in the complaint. If we receive a complaint outside the time limit, we cannot investigate unless we see special circumstances to justify doing so.
45. Ms U complains that when DWP migrated her to ESA, it failed to pay her the income-related component for the period 23 May 2012 to 11 August 2017 and failed to compensate her for the impact. We do not know what DWP told Ms U in 2012 about its decision and challenging it but from an example notice it sent us, it seems likely it did not tell her it had made a decision about the income-related component that she might appeal against. Ms U could have challenged DWP’s failure to migrate her to ESA properly or its position on compensation by judicial review. However, Ms U’s representative told us she did not have the resources to pursue legal action. He said given her vulnerability (as a single lady with a long history of severe mental impairment and paranoid schizophrenia who feels unable to contact government agencies herself) it would not be reasonable to expect her to take such action. We consider it is not reasonable to expect Ms U to have taken legal action.
46. As to the time limit, Ms U became aware of the problem in her complaint in August 2017, when DWP paid the arrears, and she complained to the MP in April 2019. Her complaint was therefore made one year and eight months after she became aware of the problem and eight months outside the time limit.
47. Ms U relied on her only representative in her complaint to DWP and the Ombudsman. He first complained to DWP in November 2017, and again in February 2018. DWP took about six months to respond to that complaint. The representative told us that after that, he did not involve the Member until 2019 due to his caseload. While delay by a representative may not itself persuade us to put the time limit aside, we have considered also the difficulty and seriousness of the subject matter, the vulnerability of the complainant, including whether it would be reasonable to expect her to have instructed another representative because of mindfulness of the time limit, and the limited contribution of his delay to the time it has taken for the complaint to come to the Ombudsman. Taking all that into account, we consider there are special circumstances that justify considering the complaint outside the usual time limit.