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Complaint handling – the Legal Ombudsman’s perspective

Editors PickComplaint handling – the Legal Ombudsman’s perspective

What is the Legal Ombudsman?

For those who don’t know who we are or what we do, we are the Ombudsman, the independent and impartial complaints handling body, for all legal services in England and Wales. We are established under the Legal Services Act 2007 (the Act) – and governed by the Act and a set of Scheme Rules. We consider complaints about the service provided by an authorised person, including solicitors and barristers, to a complainant.

We’re not a regulator, so we won’t consider whether a practitioner has breached their regulatory rules. As an Ombudsman, our role is to look at the service they provided and, if appropriate, direct them to put things right. We aim to resolve complaints as informally as possible. However, if necessary, an Ombudsman can make a final decision, which is legally binding if the consumer accepts it. We also can and do report matters to the regulator when required to do so under the Act.

Our Scheme Rules are set to change on 1 April 2023. I’ll explain more about that later, but will first give an overview of our process and approach to resolving complaints that are referred to us.

How does the Legal Ombudsman work?

On receiving a complaint, we first establish whether it was made within our time limits, if it is within our jurisdiction, and how it should be resolved. Those with previous experience of the Legal Ombudsman may be aware that waiting times over previous years have been much too long. But changes we’ve made since 2021 mean we’re now far more pragmatic in our approach, and we’re able to progress matters more quickly and proportionately. In particular, if a case is suitable for early resolution, we’ll look to do that wherever possible – although of course the complexity of many  legal services complaints means that won’t always be appropriate.

Our commitment to achieving the right outcome at the earliest possible point has been at the heart of our recovery and improvement over the last two years. At the end of December 2022, three-quarters of the way through 2022/23, we’d already resolved more complaints than in the whole of  2021/22, and we’ve reduced the average time it takes to go through our process by 26%. Although our wait times are still too long as we continue to work through our investigation queue, they are much shorter and, once through that wait time, we are resolving complaints in significantly reduced time. These improvements will be supported by our upcoming Scheme Rule changes (see below).

If a complaint does require a full investigation, an investigator will typically talk to both parties to understand the complaint, request evidence, and share their initial findings. If the parties haven’t been able to reach an agreed outcome, the investigator will make a case decision. If appropriate, an Ombudsman will make a decision which is final and binding under the Act if the complainant accepts it.

 It’s important practitioners are aware of their obligations under the Act and the BSB handbook to cooperate with the Legal Ombudsman. If you don’t do this, s147-149 of the Act allows us to take enforcement action to obtain necessary documents and/or information. We can also make a referral to the BSB. If there is a reason why you’re  unable to provide something (for example, if it doesn’t exist, or has been destroyed), then you should explain the position to the investigator.

As a complaint will be made against the barrister personally, an investigation of the complaint and any outcome will be against the barrister directly rather than their chambers (unless they are employed).

How can barristers avoid complaints?

A key part of our work is helping practitioners avoid complaints being made, and not just to resolve them once they’ve happened.  To help with this, we’ve published a significant amount of guidance on our website, run our own workshops, and regularly attend industry events and forums to share good practice. You can sign up to future events at https://www.legalombudsman.org.uk/information-centre/learning-resources/training-and-events/.

The most common types of complaints against barristers are those about failure to advise, failure to follow instructions, poor communication, and excessive costs and/or delays. A full annual report of complaint data can be found at:

https://www.legalombudsman.org.uk/information-centre/learning-resources/preventing-complaints/overview-of-annual-complaints-data/

The underlying theme in most of these complaints is communication. If a client feels they’ve been updated and are clear about what’s happening, they’re unlikely to complain.  As busy practitioners, barristers will undoubtably be working on a number of matters at any given time. But bear in mind that for the individual client, their own situation will naturally be the most important to them. To avoid them feeling like they’re not being given sufficient attention, it’s vital to manage their expectations about how and when the work will be done. We’d expect to see a barrister set this out clearly and provide updates if things change.

 How can barristers handle complaints effectively?

A good complaints handling policy is a bit like car insurance – you need to have it but you hope you don’t need to use it! While handling complaints can be time consuming and costly, they’re also learning opportunities – from which you can make your service better for the future.

If a complaint has arisen, here are our five top tips to help resolve them right quickly and fairly.

  1. Recognise when something is a complaint. This isn’t always straightforward. Our Scheme Rules define a complaint as an “expression of dissatisfaction” – and this may not necessarily be in writing. If in doubt, our advice is to ask the individual directly whether they’re raising a complaint. If you leave something unaddressed, after 8 weeks they can come to us, meaning you’ve lost the opportunity to deal with the issue ‘in house’.
  2. Respond to a complaint in line with your Chamber’s policy and BSB guidance. Any response sent to a complainant should be clear and avoid legal/technical jargon. It should also cover all issues raised by the complainant and provide any supporting documents (if appropriate).
  3. Take every complaint seriously. This is important for a number of reasons; aside from good client care, the Legal Ombudsman will look at your complaint response as part of its investigation. Even if the complaint is not upheld, if your complaint handling wasn’t reasonable, then a case fee of £400 will be payable by you.
  4. If you feel that the complaint has some merit, address this promptly. This may avoid the escalation of the complaint to us. Even if the client chooses to do this, we’ll look at any initial offer you made to settle the complaint. We will determine whether the offer was reasonable, and may dismiss the entire complaint if we decide you made a reasonable offer.
  5. Use our free technical advice line. We can give you advice on how to approach the complaint. Just email [email protected] and an Ombudsman will assist with your query.

Changes to the Scheme Rules

The Legal Ombudsman’s new Scheme Rules go live on 1 April 2023 – and will help ensure we’re an even more proportionate and efficient service going forward. We’re continuing to engage extensively with regulators to help ensure practitioners are ready for the changes. If you haven’t yet reviewed the changes, we would encourage you to do so as soon as possible – as well as taking note of any updates from your regulator – to ensure you’re aware of what they mean for you.

Some key changes include:

  • A reduction in the time limit to bring a complaint to the Ombudsman. The current Scheme Rules say a complainant must refer the complaint to us no later than 6 years from the act/omission; or 3 years from when the complainant should reasonably have known there was cause for complaint. The rules will reduce this time limit to 1 year. You should ensure that any client correspondence that refers to 6/3 years is updated appropriately.
  • The introduction of Rule 5.7(p), which will allow an Ombudsman to consider if a case should be dismissed due to the size and complexity of the complaint.
  • The introduction of Rule 5.7(q) which will ensure that new issues cannot be added to an ongoing investigation if they were already known to the complainant at the time the investigation commenced
  • An amendment to Rule 5.19, which will enable an Ombudsman to conclude that a final decision isn’t needed if no substantive issues have been raised in response to the investigator’s findings or remedy.

The Scheme Rules are available on our website at: https://www.legalombudsman.org.uk/information-centre/corporate-publications/scheme-rules/

Laura Stockin, Legal Manager, Legal Ombudsman

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